AlfoodIn Ghosi Alias Alfoo Vs. the Union of India (Uoi) - Court Judgment

Excerpt:
prevention of illicit traffic in narcotic drugs & psychotropic substances act, 1988 - section 3cd--detention--validity of--42kgs charas recovered in march 1991 and case registered and petitioner was arrested--repeated efforts by petitioner to secure bail and last bail application was rejected on 5.8.1991--detention order passed on 12.8.1991- held, delay in passing detention order has been rightly explained.;the prejudicial activities of the petitioner were revealed to the respondents on march 9, 1991 when 42.062 kg was recovered and the petitioner was arrested. a case under the ndfs act was registered against the petitioner and the petitioner is facing trial for that offence.;the detention order was passed without any delay, taking into consideration the repeated efforts of the detenu for securing the bail from various courts.;the last bail application was moved by the petitioner on july 6, 1991, which was dismissed on august 5, 1991, while the order of detention has been passed by the detaining authority on august 12, 1991. the detaining authority, on the basis of these circumstances and the material on record, was satisfied that the detenu was likely to come out on bail and will continue to indulge himself in the activities of possession and purchase of narcotic drugs and, therefore, passed the order of detention. the delay in passing the order of detention has, thus, been rightly explained by the detaining authority.;(b) prevention of illicit traffic in narcotic drugs and psychotropic substances act, 1988 - section 3cd--detention--validity of--detention is preventive measure to thwart future action--it is drastic & harsh--held, detaining authority must show its own awareness about petitioners custody in jail and that detention order is made under compelling circumstances.;preventive detention is an anticipatory measure which is resorted to, to thwart future action of the detenu and does not relate to the offence while criminal proceedings are intended to punish the person concerned for the offence committed by him. the action being a drastic and harsh and should not ordinarily be used for clipping the wings of the accused if criminal prosecution would be sufficient. in cases where the detenu is already in jail, charged with a serious offence, if there are compelling circumstances which warrant the making of an order of detention, then in such a situation, the order for detention, can be passed, but while passing the order, the detaining authority must disclose its awareness of the fact that the detenu is already in jail but for compelling reasons, the order of detention is made.;(c) prevention of illicit traffic in narcotic drugs and psychotropic substances act, 1988 - section 3(1)--detention--validity of--petitioner purchasing charas and keeping in friend's house in bags containing account books--held, past conduct & potentiality of petitioner prejudicial activities are grave and continuous and fully satisfy grounds of detention.;it is for the detaining authority to derive its satisfaction from the material on record. the past conduct and potentiality of the petitioner in purchasing and possessing the charas and keeping it at the premises of his friend babu lal suthar saying that the bags contained books while they contained charas, and not placing it at his house, which are proximate in point of time and had a rational connection with the conclusion drawn by the detaining authority that the detention of the petitioner is necessary. the prejudicial activities of the petitioner are so grave and continuous in character and are of such a nature that they fully satisfy the grounds of his detention.;(d) prevention of illicit traffic in narcotic drugs and psychotropic substances act, 1988 - section 3(1)--detention--validity of--words 'normal law'--meaning of--'normal law' means ndsps act read with other general provisions--held, while passing detention order ndps act was taken into consideration.;the use of the words 'normal law' means the usual and regular law applicable to the case of the person concerned. in the present case, the petitioner was facing trial for the offence under the ndps act and, therefore, 'normal law' mentioned in this case, means the ndps act read with the general provision relating to bail. the detaining authority, while passing the order, has therefore taken into consideration the provisions of the ndps act.;(e) narcotic drugs and psychotropic substances act, 1985 - section 37 and criminal procedure code--section 437--bail and prevention of illicit traffic in narcotic drugs and psychotropic substances act, 1988--section 3(1)--detention--validity of--grant of bail is not foreign to ndps act--held, apprehension of detaining authority that petitioner may be released on bail is not unfounded.;though the provisions regarding the bail under the narcotic drugs and psychotropic substances act are stringent, but it cannot be said that the grant of bail is foreign to the ndps act. if the condition enshrined under section 37 of the act are fulfilled and the court is of the opinion that the accused may be released on bail, then in that circumstance, the accused can be released on bail. the apprehension of the detaining authority that the petitioner can be released on bail, cannot be said to be unfounded.;(f) constitution of india - article 22(5) and prevention of illicit traffic in narcotic drugs and psychotropic substances act, 1988--section 3(1)-detention--validity of--representation submitted on 28.9.1991 reached respondent on 28.10.1991--one month taken to dispose of representation--casual and indifferent attitude in disposal of representation--held, there is breach of constitutional imperative under article 22(5).;the representation was made by the petitioner on 28.9.91 and according to the reply, submitted by the respondent, it reached to the respondent on 28.10.91. no pains have been taken by the respondents to show where this representation remained lying during this period from 28.9.91 to 28.10.91. even after the receipt of the representation, the detaining authority has taken one month's time to dispose of the representation. the manner, in which the representation has been dealt with by the respondent, reflects a sorry state of affair. the long interval in the receipt of the representation and the disposal of the same by the central government, shows the casual and indifferent attitude displayed by the authorities concerned dealing with the representation. the representation made by the petitioner was not given prompt and expeditious disposal and it was allowed to lie without being properly attended to. the constitutional imperatives of article 22(5) to consider and dispose of a representation of the detenu expeditiously, has been observed in breach which amount to negation of the constitutional obligation. this breach in constitutional obligation in not considering the representation with reasonable dispatch has resulted in defeating the cherished right of liberty of the petitioner enshrined in article 21 of the constitution of india. the detaining authority has taken unreasonably , long time in deciding the representation made by the petitioner and the explanation offered by the respondent in its reply, appears to us unsatisfactory.;writ of habeas corpus allowed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - after the rejection of the bail application by the learned additional chief judicial magistrate, jodhpur, the petitioner again preferred a bail application before the sessions judge, jodhpur, on march 14, 1991, which was dismissed by the learned sessions judge, jodhpur, on march 20, 1991. the petitioner again moved a bail application before the learned sessions judge on april 8, 1991, which was dismissed by the learned sessions judge, jodhpur, on april 18, 1991. the petitioner thereafter moved a bail application before the high court on may 17, 1991, which was dismissed by the high court on may 23, 1991. in view of the likelihood of the petitioner being released on bail and further that after his being released on bail he is likely to engage himself in the possession and purchase of narcotic drugs, the detaining authority passed an order of detention on august 12, 1991 (annexure 1). this order of detention dated august 12, 1991, was served upon the petitioner along with the grounds of while considering the delay in securing the arrest of the detenu, the apex court opined that the detaining authority has failed to explain the long delay in securing the arrest of the detenu after three months from the date of the passing of the detention order and this non-explanation of delay throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority and vitiates the validity of the detention. no hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. the last bail application was moved by the petitioner on july 6, 1991, which was dismissed on august 5, 1991, while the order of detention has been passed by the detaining authority on august 12, 1991. the detaining authority, on the basis of these circumstances and the material on record, was satisfied that the detenu was likely to come-out on bail and will continue to indulge himself in the activities of possession and purchase of narcotics drugs and, therefore, passed the order of detention. if the detaining authority is reasonably satisfied on the basis of the material on record that there is a likelihood of the detenu being released on bail and in view of his past activities which are proximate in point of time, he must be detained, then in such circumstances the detention order can be passed. district magistrate, balia air 1964 sc 334 :(1964 (1) cri lj 257) decided by the constitutional bench of the supreme court, wherein it was held as under (at page 262; of cri lj) :whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. x x x x x x x x x x xtherefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity; it seems to us well-settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. --even though prosecution proceedings under narcotic drugs and psychotropic substances act, 1985, have been initiated against you, i am satisfied that there is compelling necessity, in view of the likelihood of your being released on bail under normal law and of the likelihood of your indulging in illicit traffic of narcotic drugs as is evident from the trend of your activities to detain you under the prevention of illicit traffic in narcotic drugs and psychotropic substances act, 1988. this para 17 of the grounds of detention, thus, clearly shows that the detaining authority was not only aware that the detenu was in jail but he, also, noted the circumstances on the basis of which he was satisfied that the detenu was likely to come-out on bail and may continue to indulge himself in the activities of purchase and possession of narcotic drugs. it is, however, difficult to comprehend precisely as to how and in what manner the detenu is indulged in such activities in drugs trafficing. the petitioner is facing trial under the narcotic drugs and psychotropic substances act, which is a special law and as per section 37 of the act, an accused can be released on bail, only if the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any such offence while on bail. this constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal since such a breach would defeat the very concept of liberty -the highly cherished right -which is enshrined in article 21 of the constitution.b.r. arora, j.1. the petitioner, by this habeas corpus writ petition, has challenged the legality of the order of detention dated august 12, 1991, passed by the joint secretary to the government of india, by which the petitioner was ordered to be detained under section 3(i) of the prevention of illicit traffic, narcotic drugs and psychotropic substances act, 1988.2. the facts of the case, which necessitated the detaining authority to pass the impugned order, are that on march 9, 1991, the officers of the narcotics control bureau, jodhpur, searched the rented premises of shri babu lal suthar -- a friend of the petitioner. during the course of this search, in the underground room of the rented premises of babu lal suthar, two polythene bags containing 42 packets of charas, were found, which were kept by the petitioner. the statements of sarvashri babu lal suthar and moola ram suthar were recorded by the officers of the narcotics control bureau, jodhpur, under section 67 of the narcotic drugs and psychotropic substances act, 1985 (hereinafter referred as 'the act, 1985'). in his statement, shri babu lal suthar admitted the recovery and seizure of 42 packets of charas weighing 42.062 kg. from the underground room of his workshop and he, also, identified the photographs of the petitioner as being of his friend. moola ram suthar, in his statement under section 67 of the act, also, admitted the search and seizure of 42 packets of charas recovered from the underground of the workshop of shri babu lal suthar and disclosed that these two polythene bags, containing 42.062 kg. of charas, were kept by alfoodin ghosi in the underground on march 9, 1991, at 4-00 a.m. he further stated that the petitioner alfoodin informed him that he is keeping books in these two polythene bags. he has, also, stated that he allowed the petitioner alfoodin to put these polythene bags as he was the friend of his master shri babu lal suthar. the petitioner himself was, also, examined on march 9, 1991, and march 10, 1991, and admitted the ownership of the consignment of the charas. he, also, admitted that he purchased this charas from one gani khan r/o pokaran (district jaisalmer) @ rs. 1200/- per kilogram and asked him to deliver the same at jodhpur, and the delivery was made to him by gani khan in a mahindra jeep driven by gani khan and bearing no. rst 4780, at a pre-decided place near the badla outside iii polo, mahamandir, jodhpur, and after taking the delivery of charas, he placed this consignment in the underground room of the workshop of babu lal suthar.3. the petitioner, in pursuance of this search, was arrested and a criminal case under the narcotic drugs and psychotropic substances act was registered against the petitioner and he is facing trial. the petitioner, after his arrests, filed a bail application before the additional chief judicial magistrate, jodhpur, on march 11, 1991, which was rejected on the same day. after the rejection of the bail application by the learned additional chief judicial magistrate, jodhpur, the petitioner again preferred a bail application before the sessions judge, jodhpur, on march 14, 1991, which was dismissed by the learned sessions judge, jodhpur, on march 20, 1991. the petitioner again moved a bail application before the learned sessions judge on april 8, 1991, which was dismissed by the learned sessions judge, jodhpur, on april 18, 1991. the petitioner thereafter moved a bail application before the high court on may 17, 1991, which was dismissed by the high court on may 23, 1991. in view of the likelihood of the petitioner being released on bail and further that after his being released on bail he is likely to engage himself in the possession and purchase of narcotic drugs, the detaining authority passed an order of detention on august 12, 1991 (annexure 1). this order of detention dated august 12, 1991, was served upon the petitioner along with the grounds of detention and the annexures on august 16, 1991. the petitioner, after the receipt of the order of detention and the grounds along with the other annexures, made a representation to the central advisory board on september 28, 1991. the central advisory board considered the representation of the petitioner and the record of the case arid recommended the detention for a period of one year. the central government, by its order dated november 1, 1991, exercising its powers under section 9(f) of the prevention of traffic in narcotics drugs and psychotropic substances act, confirmed the order of detention dated august 12, 1991, and further directed that petitioner alfoodin ghosi be detained for a period of one year from the date of his detention, i.e., from august 16, 1991. the representation made by the petitioner was rejected by the detaining authority vide its order dated november 26, 1991 (annexure-3).4. learned counsel for the petitioner-detenu assails the legality of the detention order on three grounds, namely, (i) that there is undue and long delay of five months between the prejudicial activity and the passing of the detention order; (ii) that the petitioner was in jail facing trial for an offence under the n.d.p.s. act and there was no chances of his being released on bail and indulging in prejudicial activities in narcotics drugs; and (iii) that there has been considerable delay in considering the representation of the petitioner by the detaining authority, infringing the rights of the petitioner granted under article 22(5) of the constitution of india.5. now, let us examine each of the above contentions advanced by the learned counsel for the petitioner-detenu and examine whether the imugned detention is vitiated under any of the above legal submissions.6. the first ground, on which the order of detention has been challenged by the learned counsel for the petitioner-detenu is that there was unreasonable delay on the part of the detaining authority in passing the order of detention and that the delay, which stands unexplained, vitiates the impugned order. his further submission is that there is no proximity in time to provide rational nexus between the alleged prejudicial activity and the subsequent order of detention and the detaining authority has not explained the reasons for the detention order being passed after five months after the date when the involvement of the petitioner in such activities was revealed. in support of its case, the learned counsel for the petitioner-detenu has placed reliance over; t.a. abdul rahman v. the state of kerala, air 1990 sc 225 : (1990 cri lj 578), issac babu v. the union of india (1990) 4 scc 135 and pradeep nilkanth paturkar v. shri s. ramamurthi (1992 (3) jt sc 261).7. in the case of t. d. abdul rahman, the detention order was passed on october 7, 1987, but the detenu was arrested on january 18, 1988. the court considered the delay in securing the arrest of the detenu and not the delay in passing the order. while considering the delay in securing the arrest of the detenu, the apex court opined that the detaining authority has failed to explain the long delay in securing the arrest of the detenu after three months from the date of the passing of the detention order and this non-explanation of delay throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority and vitiates the validity of the detention. the hon'ble supreme court further held that the question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped, depends on the facts and circumstances of each case. no hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. thus, the ratio of this case is that when there is undue and long delay between the prejudicial activity and the passing of the order of detention, the court has to scrutinize whether the detaining authority has satisfactorily explained such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned.8. in the case of issac babu v. the union of india, there was a delay of eleven months in passing the order of detention from the date of the prejudicial activity and the explanation furnished by the detaining authority for this delay was not found satisfactory by the court and, therefore, the order of detention was quashed.9. in the case of pradeep neelkanth paturkar, five criminal cases were registered against the detenu under the bombay prohibition act on october 2, 1990, november 11, 1990, november 22, 1990, january 5, 1991, and february 26, 1991, and in all these cases the detenu was released on bail on the very day of his arrest. but the detention order was passed by the detaining authority on july 26, 1981, though the sponsoring authority submitted its proposal on april 4, 1991. the apex court, after considering the law on the point, came to the conclusion that there was long unexplained delay in passing the order of detention from the prejudicial activity of the detenu and, therefore, quashed the order of detention.10. the order of detention, passed after some delay, cannot mechanically be struck down and delay, ipso facto, in passing the order of detention is not fatal to the detention of a person, for, in certain cases, delay may be unavoidable and reasonable. there is no hard and fast rule that because there is a time-lag between the offending acts and the order of detention, the livelink must, therefore, be taken to be snapped and the satisfaction reached by the detaining authority should be regarded as unreal, but it all depends upon the facts and circumstances of each case and the nature of explanation offered by the detaining authority for the delay that had occurred in passing the order. what is required by law is that the delay must be satisfactorily explained by the detaining authority and the court, while considering the legality of the order, has to see whether the delay has been properly explained by the respondents in passing the order of detention.11. in view of this legal position, now, we have to see : whether the delay in the present case in passing the order of detention, has been properly explained by the respondent? the prejudicial activities of the petitioner were revealed to the respondents on march 9, 1991, when 42.062 kg. of charas was recovered and the petitioner was arrested. a case under the n.d.p.s. act was registered against the petitioner and the petitioner is facing trial for that offence. the respondent, in para no. 7 of the affidavit, filed in reply, has stated that the detention order was passed without any delay, taking into consideration the repeated efforts of the detenu for securing the bail from various courts. it was further mentioned in the reply that there was an apprehension that the detenu will be released on bail and is likely to indulge in prejudicial activities and therefore, with a view to prevent him from engaging in the possession and purchase of narcotics drugs, the order of detention was passed. during the course of arguments, a copy of the order dated august 5. 1991, was also, produced by the learned standing counsel for the central government, by which the bail application dated july 6. 1991, submitted by the petitioner, was dismissed with some directions. though the earlier bail applications of the petitioner were dismissed on 11-3-91, 20-3-91, 18-4-91 and 23-5-91, but the petitioner filed another bail application on july 6, 1991, and, therefore, the authorities were apprehensive of the petitioner's being released on bail. the last bail application was moved by the petitioner on july 6, 1991, which was dismissed on august 5, 1991, while the order of detention has been passed by the detaining authority on august 12, 1991. the detaining authority, on the basis of these circumstances and the material on record, was satisfied that the detenu was likely to come-out on bail and will continue to indulge himself in the activities of possession and purchase of narcotics drugs and, therefore, passed the order of detention. the delay in passing the order of detention has, thus, been rightly explained by the detaining authority. we, therefore, do not find any merit in this contention raised by the learned counsel for the petitioner.12. the next contention raised by the learned counsel for the petitioner is that the detention order deserves to be quashed because the same has been made when the detenu was already in judicial custody and was facing the trial for the offence under the n.d.p.s. act and in view of the provisions of section 37 of the act, there was no prospects of his being released on bail. he has, also, submitted that the order of detention has been passed by the detaining authority without application of mind as the implication of section 37 of the act has not been considered by the detaining authority and what has been stated in the grounds is that there is possibility of his being released on bail under the 'normal law', while the n.d.p.s. act is not a normal law; but is a special law. his further contention is that there was no compelling necessity to pass the impugned detention order for the obvious reason that while in judicial custody, the petitioner was not likely to indulge in any prejudicial activities such as drugs trafficing. learned counsel for the petitioner, in support of his case, has placed reliance over : n. meera rani v. the government of tamil nadu, air 1989 sc 2027, dharmendra sugan chand chelawat v. union of india, air 1990 sc 1196 : (1990 cri lj 1232) and jyotia vyas v. union of india, 1991 (1) efr 383. the learned standing counsel for the central government, on the other hand, has supported the order passed by the detaining authority and submitted that subsisting custody of the detenu by itself does not invalidiate the order of preventive detention if the detention is necessary to prevent the detenu from indulging in such prejudicial activities of drugs trafficing. in support of its case, the learned standing counsel has placed reliance over : alijan mian v. district magistrate, dhanbad (1983) 4 scc 301 : (1983 cri lj 1649), anand prakash v. the state of uttar pradesh, (1990) 1 scc 291 : (air 1990 sc 516), dharmendra suganchand chelawat v. union of india 1990 (1) scc 746 : (1990 cri lj 1232), sanjay kumar agrawal v. union of india (1990) 3 scc 309 : (1990 cri lj 1238), kamarunissa v. union of india (1991) 1 scc 128 : (1991 cri lj 2058) and abdul sattar ibrahim navik v. union of india, (1992) 1 scc 1: 1991 cri lj 3291.13. we have considered the submissions made by the learned counsel for the parties. the detention of the petitioner in the jail does not take away the jurisdiction of the detaining authority in making an order of preventive detention and the subsisting custody of the detenu by itself does not invalidiate an order of preventive detention if the detaining authority thinks it necessary to prevent him in indulging in the possession and purchase of narcotics drugs. if the detaining authority is reasonably satisfied on the basis of the material on record that there is a likelihood of the detenu being released on bail and in view of his past activities which are proximate in point of time, he must be detained, then in such circumstances the detention order can be passed.14. preventive detention is an anticipatory measure which is resorted to, to thwart future action of the detenu and does not relate to the offence while criminal proceedings are! intended to punish the person concerned for the offence committed by him. the action being a drastic and harsh and should not ordinarily be used for clipping the wings of the accused if criminal prosecution would be sufficient. in cases where the detenu is already in jail, charged-with a serious offence, if there are compelling circumstances which warrant the making of an order of detention, then in such a situation, the order for detention can be passed, but while passing the order, the detaining authority must disclose its awareness of the fact that the detenu is already injail but for compelling reasons, the order of detention is made.15. the question as to when and in what circumstances the order for preventive detention may be passed against a person, who is already in jail, came-up for consideration before the supreme court in various cases including the cases relied upon by the learned counsel for the parties. the first case on this point is the case of : rameshwar shaw v. district magistrate, balia air 1964 sc 334 : (1964 (1) cri lj 257) decided by the constitutional bench of the supreme court, wherein it was held as under (at page 262; of cri lj) :--.whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released.x x x x x x x x x x xtherefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.the proposition of law reflected in the various judgments of the supreme court has been summarised by the supreme court in the case of : kamarunissa v. union of india 1991 (1) scc 128 : (1991 cri lj 2058), in the following words (at pages 2065 & 2066; of cri lj) :--from the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from so doing. if the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before the higher court. what this court stated in the case of ramesh yadav (1985) 4 scc 232 : (1986 cri lj 312) was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. it seems to us well-settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. this seems to be quite clear from the case law discussed above and there is no need to refer to the high court decisions to which our attention was drawn since they do not hold otherwise. we, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody.16. thus, looking to the antecedent history and the past conduct of the detenu, detention order can validly be passed even in the case of a person who is already in custody, but in such a case it must appear from the grounds that the authority was aware that the detenu was already in custody and that there was enough material necessitating the detention of the person in custody. in the present case, in the ground of detention served along with the order of detention, in para no. 17, it is stated:--even though prosecution proceedings under narcotic drugs and psychotropic substances act, 1985, have been initiated against you, i am satisfied that there is compelling necessity, in view of the likelihood of your being released on bail under normal law and of the likelihood of your indulging in illicit traffic of narcotic drugs as is evident from the trend of your activities to detain you under the prevention of illicit traffic in narcotic drugs and psychotropic substances act, 1988.this para 17 of the grounds of detention, thus, clearly shows that the detaining authority was not only aware that the detenu was in jail but he, also, noted the circumstances on the basis of which he was satisfied that the detenu was likely to come-out on bail and may continue to indulge himself in the activities of purchase and possession of narcotic drugs.17. we are, therefore, of the opinion that there is no force in the submissions raised by the learned counsel for the petitioner that being in judicial custody, the petitioner will not he in a position to indulge in drugs trafficing or in possessing or purchasing the narcotic drugs and as such the detention of the petitioner on this ground is non-existent. it is, however, difficult to comprehend precisely as to how and in what manner the detenu is indulged in such activities in drugs trafficing. it is for the detaining authority to derive its satisfaction from the material on record. the past conduct and potentiality of the petitioner in purchasing and possessing the charas and keeping it at the premises of his friend babu lal suthar saying that the bags contained books while they contained charas, and not placing it at his house, which are proximate in point of time and had a rational connection with the conclusion drawn by the detaining authority that the detention of the petitioner is necessary. the prejudicial activities of the petitioner are so grave and continuous in character and are of such a nature that they fully satisfy the grounds of his detention.18. the contention of the learned counsel for the petitioner that in the grounds of detention it has been mentioned that the petitioner will be released on bail as per the 'normal law' of the land, which means that he has considered the provisions relating to the bail under the code of criminal procedure only and not of narcotic drugs and psycho-tropic substances act which contains stringent provisions relating to bail. the petitioner is facing trial under the narcotic drugs and psychotropic substances act, which is a special law and as per section 37 of the act, an accused can be released on bail, only if the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any such offence while on bail. it is not in dispute that the detaining authority, in the grounds of detention, has mentioned the words 'normal law'. according to dictionary meaning, the word 'normal' means: usual, regular, according to rules, not deviating from established norm, rule or principle, conformed to a type, standard or regular pattern. the use of the words 'normal law' means the usual and regular law applicable to the case of the person concerned. in the present case, the petitioner was facing trial for the offence under the n.d.p.s. act. and, therefore, 'normal law' mentioned in this case, means the n.d.p.s. act read with the general provisions relating to bail. the detaining authority, while passing the order, has therefore taken into consideration the provisions of the n.d.p.s. act. though the provisions regarding the bail under the narcotic drugs and psychotropic substances act are stringent, but it cannot be said that the grant of bail is foreign to the n.d.p.s. act. if the conditions enshrined under section 37 of the act are fulfilled and the court is of the opinion that the accused may be released on bail, then in that circumstance, the accused can be released on bail. the apprehension of the detaining authority that the petitioner can be released on bail, cannot be said to be unfounded. the contention of the learned counsel for the petitioner that there is non-application of mind by the detaining authority in the present case, is, thus, devoid of any force.19. the last ground, on which the detention order has been challenged by the learned counsel for the petitioner, is that the representation of the petitioner, in the present case, has not been given prompt and expeditious consideration and was allowed to lie without being properly attended to. the delay of about two months in the consideration of the representation in the absence of satisfactory explanation, renders the order of detention invalid. learned counsel for the petitioner, in support of its case, has placed reliance over : smt. icchu devi choraria v. union of india air 1980 sc 1983, smt. khatoon begum v. union of india air 1981 sc 1077 : (1981 cri lj 606), harish pohwa v. the state of uttar pradesh air 1981 sc 1126 : (1981 cri lj 750), piara singh v. the state of punjab air 1987 sc 2377 : (1988 cri lj 164), ram dhandu borade v. v. k. saraf, commission of police (1992 r. cr. c. 142), gazi khan alias chhotia v. the state of rajasthan air 1990 sc 1361 : (1990 cri lj 1420) and mahesh kumar chauhan alias banti v. union of india air 1990 sc 1455 : (1990 cri lj 1507). learned standing counsel for the union of india, on the other hand, has submitted that there was no delay in deciding the representation made by the detenu. his further submission is that the delay in considering the representation will not, by itself, vitiate the detention order when the order was passed after detailed investigation and consideration. in support of its contention, learned counsel for the union of india has placed reliance over : m. ahamedkutty v. union of india (1990) 2 scc 1 and kamarunissa v. union of india (1991) 1 scc 128 : (1991 cri lj 2058).20. the detenu has a constitutional right to make and get his representation considered at the earliest opportunity. consideration of the representation of the detenu 'at the earliest opportunity' is the obligation of the central government created by the constitution of india. article 22(5) of the constitution of india enjoins a duty on the detaining authority to consider and decide the representation of the petitioner at the earliest opportunity.21. the question regarding the delayed consideration and disposal of the representation of the detenu came up for consideration before the hon'ble supreme court in numerous cases, including the cases on which reliance has been placed by the learned counsel for the parties. the proposition of law deduciable from these judgments has been summarised by the supreme court in the case of rama dhandu borade v. v. k. saraf, the commissioner of police (1989) 3 scc 173 : (1989 cri lj 2119), in the following words :--the detenu has an independent constitutional right to make his representation under article 22(5) of the constitution of india. correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose the same as expeditiously as possible. this constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal since such a breach would defeat the very concept of liberty -- the highly cherished right -- which is enshrined in article 21 of the constitution.true, there is no prescribed period either under the provisions of the constitution or under the concerned detention law within which the representation should be dealt with. the use of the words 'as soon as may be' occurring in article 22(5) of the constitution reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. what is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. however, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention.22. in the light of the various judgments of the supreme court and the proposition laid down in the aforesaid case, we have to see : whether in the present case, the constitutional imperative of article 22(5) of the constitution of india has been observed or not and whether the representation filed by the petitioner has been considered expeditiously?23. the petitioner was detained on august 16, 1991, and the order of detention along with the grounds of detention was served upon the petitioner-detenu on august 16, 1991. the petitioner made the representation on september 28, 1991, and the same was forwarded by the superintendent, central jail, jodhpur. the detention order, on the recommendation of the advisory board, was confirmed by the central government vide its order dated november 1, 1991. the representation of the petitioner was decided by the detaining authority on november 26, 1991. para 4 of the affidavit, filed in reply to the writ petition relates to the receipt consideration and disposal of the representation and reads as under:--as regards the averments made in para no. 7 of the petition are not admitted and are denied. the representation was received on 28-10-92 and after necessary examination and consideration at various levels, it was finally disposed of and the letter was issued on 26-11-91. thus, it has been processed expeditiously and there was no delay.the representation was made by the petitioner on 28-9-91 and according to the reply, submitted by the respondent, it reached to the respondent on 28-10-91. no pains have been taken by the respondents to show where this representation remained lying during this period from 28-9-91 to 28-10-91. even after the receipt of the representation, the detaining authority has taken one month's time to dispose of the representation. the manner, in which the representation has been dealt with by the responent, reflects a sorry state of affair. the long interval in the receipt of the representation and the disposal of the same by the central government, shows the casual and indifferent attitude displayed by the authorities concerned dealing with the representation. the representation made by the petitioner was not given prompt and expeditious disposal and it was allowed to lie without being properly attended to. the constitutional imperatives of article 22(5) to consider and dispose of a representation of the detenu expeditiously, has been observed in breach which amounts to negation of the constitutional obligation. this breach in constitutional obligation in not considering the representation with reasonable dispatch has resulted in defeating the cherished right of liberty of the petitioner enshrined in article 21 of the constitution of india. the detaining authority has taken unreasonably long time in deciding the representation made by the petitioner and the explanation offered by the respondent in its reply, appears to us unsatisfactory.24. we are, therefore, of the opinion that the undue and unexplained delay in the disposal of the representation of the petitioner is in violation of the constitutional obligation of the respondents enshrined under article 22(5) of the constitution of india, which renders the detention order invalid and inoperative.25. in the result, we allow this habeas corpus petition, quash the order dated august 12, 1991 (annexure-1), passed by the joint secretary to the government of india, by which the petitioner was ordered to be detained under section 3(1) of the prevention of illicit traffic in narcotic drugs and psycho-tropic substances act and hold his detention in pursuance to this order as being illegal. we, also, quash the order annexure-4 dated november 1, 1991, passed by the detaining authority confirming the detention order dated august 12, 1991.