Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment

Judgment:

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			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '1999CriLJ236',
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			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
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			'circuit' => null
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$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
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		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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	(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$content = array(
	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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Vishnu Sahai, J.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
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		'pubs' => '1999CriLJ236',
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		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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1. By means of this petition preferred under Article 226 of the Constitution of India the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
)
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2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$content = array(
	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
)
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4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1999CriLJ236',
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			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
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$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
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		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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	(int) 0 => '368519',
	(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$url = 'https://sooperkanoon.com/case/amp/368519/smt-dina-hazarilal-kachera-vs-k-srivastava'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
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		'pubs' => '1999CriLJ236',
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		'respondent' => 'A.K. Srivastava and ors.',
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.

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			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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	(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$content = array(
	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
)
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The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
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		'pubs' => '1999CriLJ236',
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		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$content = array(
	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
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		'pubs' => '1999CriLJ236',
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		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
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		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.

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                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
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		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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	(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$content = array(
	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
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		'pubs' => '1999CriLJ236',
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		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.

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			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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	(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$content = array(
	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
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		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$content = array(
	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
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		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
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		'pubs' => '1999CriLJ236',
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		'respondent' => 'A.K. Srivastava and ors.',
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
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			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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	(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$content = array(
	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
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			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$content = array(
	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
)
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A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
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		'pubs' => '1999CriLJ236',
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		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
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		'pubs' => '1999CriLJ236',
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		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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	(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$content = array(
	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
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		'pubs' => '1999CriLJ236',
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		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
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			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$content = array(
	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'smt-dina-hazarilal-kachera-vs-k-srivastava'
$args = array(
	(int) 0 => '368519',
	(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$url = 'https://sooperkanoon.com/case/amp/368519/smt-dina-hazarilal-kachera-vs-k-srivastava'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.

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	'title_for_layout' => 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
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		'pubs' => '1999CriLJ236',
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		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
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	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
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18. In the result this petition is dismissed and rule is discharged.

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			'id' => '368519',
			'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
			'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
			'appellant' => 'Smt. Dina Hazarilal Kachera',
			'authreffered' => '',
			'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
			'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
			'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1998-09-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
			'judgement' => '<p style="text-align: justify;">Vishnu Sahai, J.</p><p style="text-align: justify;">1. By means of this petition preferred under Article 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p style="text-align: justify;">2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p style="text-align: justify;">3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p style="text-align: justify;">4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p style="text-align: justify;">On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p style="text-align: justify;">In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p style="text-align: justify;">The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p style="text-align: justify;">5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p style="text-align: justify;">6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p style="text-align: justify;">7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p style="text-align: justify;">8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p style="text-align: justify;">A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p style="text-align: justify;">9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p style="text-align: justify;">10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p style="text-align: justify;">11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p style="text-align: justify;">In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p style="text-align: justify;">12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p style="text-align: justify;">13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p style="text-align: justify;">The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p style="text-align: justify;">14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p style="text-align: justify;">A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p style="text-align: justify;">15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p style="text-align: justify;">The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p style="text-align: justify;">With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p style="text-align: justify;">The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p style="text-align: justify;">The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p style="text-align: justify;">16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p style="text-align: justify;">17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p style="text-align: justify;">We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p style="text-align: justify;">18. In the result this petition is dismissed and rule is discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1999CriLJ236',
			'ratiodecidendi' => '',
			'respondent' => 'A.K. Srivastava and ors.',
			'sub' => 'Criminal;Narcotics',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'smt-dina-hazarilal-kachera-vs-k-srivastava',
	'args' => array(
		(int) 0 => '368519',
		(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
	)
)
$title_for_layout = 'Smt Dina Hazarilal Kachera Vs a K Srivastava and ors - Citation 368519 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '368519',
		'acts' => '<a href="/act/50904/prevention-of-illicit-traffic-in-narcotic-drugs-and-psychotropic-substances-act-1988-complete-act">Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988</a> - Sections 3(1) and 10(1); National Security Act; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F',
		'appealno' => 'Criminal Writ Petition No. 1043 of 1997',
		'appellant' => 'Smt. Dina Hazarilal Kachera',
		'authreffered' => '',
		'casename' => 'Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors.',
		'casenote' => ' - Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act  Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii)  Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under Article 1. Thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. But from this requirement of payment of court fee on ad valorem basis, Article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue Court challenging any award made under the Arbitration Act, 1940.Thus, the provisions of Article 3 of Schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the Arbitration Act, 1940. Thus the provisions of Article 3 of Schedule I do not apply when an application is filed challenging an award made under the Arbitration Act, 1940. The question, therefore, that arises for consideration is whether reference to the provisions of 1940 Act found in Article 3 of Schedule I of the Bombay Court Fees Act can be said to include reference to the 1996 Act. Perusal of the provisions of Section 8 of General Clauses Act shows that where by a Central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.  In the present case, it is common ground that the former enactment is the 1940 Act, the new enactment is the 1996 Act and any other enactment is the Bombay Court fees Act, the only provision of the 1940 Act referred to in Article 3 of Schedule 1 of the Bombay Court Fees Act is the provisions of Section 33 of the 1940Act and  bare comparison of that provision with the provisions of sub-section (1) of Section 34 of the 1996 Act shows that the provision of Section 33 of 1940 Act is repealed and re-enacted in sub-section (1) of Section 34 of the 1996 Act with slight modification. Therefore, reference to the provisions of Section 33 of the 1940 Act in Article 3 of Schedule-I of the Bombay Court Fees Act has to be construed, in view of the provisions of Section 8 of the General Clauses Act, as reference to the provisions of Section 34 of the 1996 Act. So far as an appeal filed under Section 37 of the 1996 Act is concerned, perusal of Section 37 shows that an appeal is provided to the appellate Court against an order setting aside an arbitral award or refusing to set aside an arbitral award under Section 34. Thus, as the provisions of Article 3 of Schedule-I do not apply to an application or petition filed under Section 34 of the 1996 Act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the Arbitrator under the 1996 Act. In other words nothing contained in Article 3 of Schedule-I of the Bombay Court Fees Act applies to an application, petition or memorandum of appeal to set aside or modify any Award made under the 1996 Act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an Award made under the Arbitration Act, 1940. Perusal of the provisions of Section 8 of the General Clauses Act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. The different intention may appear either in the new enactment or in the other enactment. Nothing was pointed out either in the 1996 Act or in the Bombay Court Fees Act which can be construed as a different intention or which will show that it was not the intention of the Maharashtra legislature to exclude an application or petition or memorandum of appeal filed in Court to set aside or modify an award made under the 1996 Act, from the provisions of Article 3 of Schedule-I of the Bombay Court Fees Act. It appears that the intention behind excluding an application made, challenging the Award made under the 1940 Act, from requirement of payment of ad valorem Court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. Nothing has been pointed out to show that ther4e is any change in that legislative policy. On the contrary, from the preamble of the 1996 Act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. Article 3 of Schedule-I of the Bombay Court Fees Act does not apply to a petition,  application or memorandum of appeal filed for challenging an Award made under the 1996 Act, and Court fee on a petition filed under Section 34 of the 1996 Act challenging an Award in High Court is payable according to Article 1(f)(iii) of Schedule II. 

Section 37: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act.

Schedule I, Article 3 & Schedule II, Article 1(f)(iii): [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Arbitration & Conciliation Act, 1996 - Held, When a Petition under Section 34 is to be filed before a Principal Civil Court of original jurisdiction which is not a High Court, the question arises which Article of either First Schedule or Second Schedule would apply. In so far as the challenge to an Award made under the 1940 Act is concerned, an application under Section 33 of that Act could be made to a Civil Court and therefore, payment of Court fee was governed by Article 1(a) of Schedule II. This was so because the application was to be presented to the Court of Civil Judge which was not a principal Civil Court of original jurisdiction. But now because of change of definition of term Court in the 1996 Act, a petition has to be presented, challenging an Award made under the 1996 Act in terms of the provisions of Section 34 thereof, before the Principal Civil Court of original jurisdiction. No entry either in the first Schedule or in the Second Schedule was pointed out which applies to an application or petition to be made before the Principal Civil Court of original jurisdiction, and therefore, when a litigant wants to file petition before a Principal Civil Court having original jurisdiction which is not High Court, challenging an Award made under the 1996 Act, no court fee under Bombay Court Fees Act is payable because of absence of a general or specific provision. Therefore, it can be said that no Court  fee under the Bombay Court Fees Act is payable when a petition under Section 34 challenging an Award is filed before any Principal Civil Court of original jurisdiction which is not High Court. 

Schedule II, Article 13: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Appeal under Section 37 of the Arbitration & Conciliation Act, 1996 - Held, Court fee is payable according to Article 13 of Schedule II of the Bombay Court Fees Act. -  Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act'). 2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. 14. We would now like to refer to two decisions cited by Mr. 15. We would now like to advert to the decision of the Apex Court rendered in the case of 1990CriLJ1731 Smt. 17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs;',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.',
		'counseldef' => 'R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1998-09-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'N. Arumugam and ;Vishnu Sahai, JJ.',
		'judgement' => '<p>Vishnu Sahai, J.</p><p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').</p><p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.</p><p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.</p><p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:</p><p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.</p><p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.</p><p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.</p><p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.</p><p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.</p><p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.</p><p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.</p><p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.</p><p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.</p><p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.</p><p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.</p><p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.</p><p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.</p><p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.</p><p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.</p><p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.</p><p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.</p><p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.</p><p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :</p><p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.</p><p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :</p><p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. </p><p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.</p><p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.</p><p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.</p><p>18. In the result this petition is dismissed and rule is discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1999CriLJ236',
		'ratiodecidendi' => '',
		'respondent' => 'A.K. Srivastava and ors.',
		'sub' => 'Criminal;Narcotics',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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	(int) 1 => 'smt-dina-hazarilal-kachera-vs-k-srivastava'
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$content = array(
	(int) 0 => '<p>Vishnu Sahai, J.',
	(int) 1 => '<p>1. By means of this petition preferred under Article 226 of the <a>Constitution of India</a> the petitioner who is the wife of the detenu Nahim Noor Qureshi alias Haji has impugned the detention order dated 8th April, 1996, passed by the 1st respondent Mr. A. K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PIT NDPS Act').',
	(int) 2 => '<p>2. At the very outset we would like to point of that the learned counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20, 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PIT NDPS Act, dated 8-5-96, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68E of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.',
	(int) 3 => '<p>3. The detention order dated 8-4-1996 along with the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.',
	(int) 4 => '<p>4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:',
	(int) 5 => '<p>On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai, on the basis of the specific intelligence searched Flat No. 34/F Building, Ninmila Colony, Mount Mary Steps, Bandra (West), Mumbai 400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 Kgs. The search was conducted in the presence of Ms. Margaret James Bol, a Sudanese national who was a tenant in the said flat.',
	(int) 6 => '<p>In her statements dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia, stated that she was staying in (he said flat on lease and licence basis; a Nigerian named John Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1 -1996 officers of the NCB searched her fiat and seized US $ 34 and Indian currency to the tune of Rs. 23,750/- and some documents along with 5 kgs of heroin, out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.',
	(int) 7 => '<p>The detenu in his statements dated 25-1-1996, 26-1-1996, 27-1-96 and 5-2-96 stated that he hailed from Quetta, Pakistan, came to India in the year 1988 and was staying with the petitioner in Flat No. 203, 'A' Wing, Utsani Building, 2nd floor, Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay 50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on 25-1 -1996 the officers of the NCB; searched the premises at Guru Kripa Marg, Suraiya Corner, Lonavala where he and the petitioner were staying and during the search the Maruti car which he used for the purpose of procuring and delivering narcotic drugs was seized.',
	(int) 8 => '<p>5. In his statement the detenu admitted that along with Satya Prakash Behl and the tatter's nephew Vimal Behl he was indulging in the business of selling and delivering narcotic drugs. He also admitted in his statement that he procured heroin through one Races of Peshawar, one Khan of Faridabad and one Mr. Hitish Gandhi of Gandhi Communication Centre. Bombay. In his statement he stated that he knew Ms. Margaret Bol and Mr. Charlie alias John Thomas, a Nigerian national who was staying with Ms. Margaret Bol and that one Ibrahim (African National) and one Hasan residing near Fish Market, Behram Bagu Road, Jogeshwari (West), Bombay were assisting him in the delivery and storage of heroin. Hasan's wife was also working with him. He also admitted that one Imtiyaz Wali of London assisted him in the storage of heroin and he did not know his whereabouts. He candidly admitted that in amonth, on an average 40-50 kgs. of heroin was sold by him and that he used to import 5 to 6 tones of charas through illegal channel and export the same to UK and USA whereby he used to earn Rs. 20 to Rs. 25 lakhs a year. He also admitted that he used to go to Pune to give delivery of heroin; that he was staying in India illegally; that in 1995 he was arrested at Delhi while he was attempting to travel to Dubai on a forged passport; and that he purchased a Maruti car bearing No. MH-01 -8489 for Rs. 2 lakhs out of the profits earned from the said illegal business. He also admitted that he had been supplying the drugs to Somalian nationals in Bombay and Pune, that he was arrested on 6-6-1990 in a drug case by the Narcotic Cell, Bombay, and was in jail in that connection from 1990 to 1992 and in 1992 was acquitted in it. He admitted that since then he started staying with the petitioner and on 27-1-1996 when the premises at Bandra was searched 3gms of heroin was seized. He also admitted that he was using conference facilities of M/s. Gandhi Communication Centre, Bombay, in contacting his associates in Pakistan, Dubai, U.K. and USA and on an average paid Rs. 25,000/- to Rs. 30,000/- for the calls made through the said centre.',
	(int) 9 => '<p>6. In her statements dated 25-1-1996, 26-1-1996,27-1-96,29-1 -96 and 1 -2-96 the petitioner stated that she and the detenu were staying as husband and wife, though not married legally. She stated that the detenu used to bring some bags to the house and immediately take them away on the next day and when she questioned him about the nature of his business he used to reply that she should not ask him. Since she was dependent on him she acceded to the said injunction.',
	(int) 10 => '<p>7. On 28-1-1996, 29-1 -1996 and 5-2-1996 the statements of Hitesh Gandhi, Manager of M/s. Gandhi Communication Centre, Mumbai, were recorded and he admitted therein that the detenu was a member of the Communication Centre and was paying Rs. 25000/- to Rs. 30,000/- per month in cash in connection with the telephone calls made therefrom.',
	(int) 11 => '<p>8. It is mentioned in the grounds that the detenu was arrested on 25.-1-1996 and was produced before the Chief Metropolitan Magistrate (Holiday Court) the same day, who remanded him to NCB custody till 29-1-1996 and thereafter he was produced before the Special Judge, who remanded him to judicial custody till 7-2-1996. In the said factual matrix the detaining authority concluded in paragraph 11 that if not prevented, the detenu would continue indulging in illicit traffic in narcotic drugs and psychotropic substances and consequently in paragraph 12 recorded the subjective satisfaction that there was compelling necessity, in view of the likelihood of his being granted bail and of his indulging in illicit traffic in narcotic drugs, as evident from the trend of his activities, to detain him under the PIT NDPS Act, 1988, with a View to prevent him from engaging himself in procurement, storage and abetting in the export of narcotic drugs from India.',
	(int) 12 => '<p>A perusal of the grounds also shows that the detenu has been apprised of his right to make the requisite legal representation to the Central Government and the Central Advisory Board.',
	(int) 13 => '<p>9. We have heard Mr. Shirish Gupte for the petitioner, Mr. R. M. Agarwal for respondents Nos. 1 to 3 and Mrs. V.K. Tahilramani for respondents 4 and 5.',
	(int) 14 => '<p>10. Mr. Gupte strenuously urged that the impugned detention order merits to be quashed in view of grounds (i), (ii) and (iii) of the petition. The short and long of the said grounds is that since the detenu had been refused bail and had been remanded to judicial custody, in view of the stringent provisions under Section 37 of the NDPS Act his being released on bail was virtually ruled out and consequently there was no rationale to 'preventively detain him and the detention order instead of being preventive had thus become punitive. The burden of song in the said grounds is also to the effect that the subjective satisfaction of the detaining authority that the detenu on being released on bail was likely to revert to prejudicial activities is not founded on cogent material.',
	(int) 15 => '<p>11. Grounds (1),(ii) and (iii) of the petition have been replied to in paragraphs 4(i), 4(ii) and 4(iii) of the return filed by Ms. Reva Nayyar, Joint Secretary (NC). Department of Revenue, Ministry of Finance, New Delhi. In the said paragraphs it has been averred by her that the detenu can approach NDPS Special Court, subsequently the High Court and the Supreme Court with an application for bail and hence it was wrong to mention that there was no compelling necessity to issue a detention order. She also averred that the detenu was a large scale habitual drug trafficker and consequently if was imperative to detain him in order to prevent him from indulging in drug trafficking. She averred that if released on bail the detenu would revert to illicit drug traffic and considering the gravity of the allegations, his antecedents and propensity it was imperative to detain him. She also averred that it was wrong to say that there was no apprehension that the detenu would indulge in drug trafficking.',
	(int) 16 => '<p>In short the burden of song of Ms. Reva Nayyar is that there was possibility of the detenu applying for bail, of his being released on bail and of his reverting to illicit traffic in the business of drugs and consequently it was necessary to detain him.',
	(int) 17 => '<p>12. Mr. Gupte learned counsel for the petitioner in order to substantiate his submission placed reliance on the decision of the Apex Court reported in : 1988CriLJ839 Smt. Shashi Aggarwal v. State of U.P. Mr. Gupte invited our attention, in particular to para 13 wherein it was observed that there was material on record that the 'detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out' but in spite of that the Supreme Court felt that the detention of the detenu under the National Security Act could not be sustained.',
	(int) 18 => '<p>13. We have reflected over the grounds canvassed by Mr. Gupte and the decision cited by him and also the reply furnished by Ms. Reva Nayyar in her return. We regret that we do not find any merit in Mr. Gupte's contentions.',
	(int) 19 => '<p>The reason why the Supreme Court set aside the detention order in : 1988CriLJ839 (supra), namely that there was no material that the detenu if released on bail was likely to commit activities prejudicial to the maintenance of public order has been set out in para 13 itself. Here, as is apparent from a perusal of the grounds of detention, there is enough material to indicate that the detenu if released on bail was most likely to revert to the business of illicit dealing in narcotic drugs. Hence the said decision is distinguishable.',
	(int) 20 => '<p>14. We would now like to refer to two decisions cited by Mr. R. M. Agarwal which are a complete answer to Mr. Gupte's submission.',
	(int) 21 => '<p>A Division Bench of this Court of which one of us (N. Arumugam J.) was a member in Criminal Writ Petition No. 786 of 1996 decided on 3-7-1998 (Ayyub s/o. Lal Khan Pathan v. A.K. Srivastava 1998 (3) Bom LR 348 has considered the question of the provisions of Section 37 of the NDPS Act in a preventive detention under the PITNDPS Act. In paragraph 21 Arumugam J. speaking for the Division Bench observed that it is a misnomer that in view of the provisions of Section 37 of the NDPS Act the fate of the detenu for the purposes of bail is sealed. His Lordships has held that there are enough contingencies in which bail can be granted in spite of the bar of Section 37, for instance, violation of any of the mandatory provisions of NDPS Act. Placing reliance on the said decision, with which we are in respectful agreement, we feel that the subjective satisfaction of the detaining authority to the effect that there was likelihood of the detenu being granted bail cannot be faulted with.',
	(int) 22 => '<p>15. We would now like to advert to the decision of the Apex Court rendered in the case of : 1990CriLJ1731 Smt. Azra Fatima v. Union of India wherein the decision cited by Mr. Gupte : 1988CriLJ839 has been considered and which is very relevant for the disposal of this petition. There is a reference in para 5 that in view of the decision of the Apex Court in the case of N. Meera Rani : [1989]3SCR901 it was a judgment on the peculiar facts of the case, and should not be construed as laying down a general proposition of law.',
	(int) 23 => '<p>The said decision also pertains to a preventive detention under PIT NDPS Act. Submissions identical to those canvassed by Mr. Gupte were canvassed before the Apex Court, as is evident from a perusal of para 3 of the said decision. To borrow the exact words of the Apex Court from para 3 what was contended from the side of the petitioner before it was :',
	(int) 24 => '<p>With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the detaining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibility of his being released on bail in a serious offence under the Act.',
	(int) 25 => '<p>The Apex Court after referring to the cases cited before it by counsel for the petitioner, in para 13 observed that the detaining authority was fully aware that the detenu's bail application had been rejected but the antecedents of the detenu indicated that he was initiated in drug trafficking in 1984 and from very humble beginnings, within a short span started buying and selling Narcotic Drugs and amassed huge movable and immovable properties. After taking these circumstances into consideration, coupled with the fact that heroin and mandrax tablets worth Rs. 1, 13,42,000/- were seized from the ownership and possession of detenu and he was using three vehicles for transportation of these narcotic drugs, the Supreme Court thus in the said para observed :',
	(int) 26 => '<p>The detaining authority after taking into consideration the above materials placed before him, arrived at the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it accessory to invoke the, law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. ',
	(int) 27 => '<p>16. In the present case a perusal of the grounds of detention shows that the detenu was involved in. drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the detaining authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material.',
	(int) 28 => '<p>17. In short we are implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The detaining authority in the grounds of detention has recorded his awareness :- (i) that the detenu was in custody; (ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law.',
	(int) 29 => '<p>We feel that the impugned detention order clamped against the detenu was wholly justified and suffers from no vice or infirmity.',
	(int) 30 => '<p>18. In the result this petition is dismissed and rule is discharged.<p>',
	(int) 31 => '<p>'
)
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Subject	Criminal;Narcotics
Court	Mumbai High Court
Decided On	Sep-18-1998
Case Number	Criminal Writ Petition No. 1043 of 1997
Judge	N. Arumugam and ;Vishnu Sahai, JJ.
Reported in	1999CriLJ236
Acts	Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - Sections 3(1) and 10(1); National Security Act; Constitution of India - Article 226; Narcotic Drugs and Psychotropic Substances Act - Sections 37, 68E and 68F
Appellant	Smt. Dina Hazarilal Kachera
Respondent	A.K. Srivastava and ors.
Appellant Advocate	Shirish Gupte, ;Maqsood Khan and ;K.K. Pradhan, Advs.
Respondent Advocate	R.M. Agarwal, Adv. and ;V.K. Tahilramani, P.P.
Disposition	Petition dismissed

Smt. Dina Hazarilal Kachera Vs. A.K. Srivastava and ors. - Court Judgment