1. Petitioner Arif U. Patel, the detenu himself, has prayed for issue of a Habeas for his production before this Court, as that he could be set free after quashing the impugned order dated 28th July, 1994 passed against him by the first respondent in exercise of the powers conferred under Section 3(1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, with a view to preventing him from engaging in abetting in the procurement and export from India of narcotic drugs.
2. A brief resume of the facts which led to the passing of the impugned order may be necessary. On a tip off by the NCB Zonal unit, Madras, through the Drug Liasion Officer, HM Customs and Excise, based at Bombay, the Israeli Police had seized a huge quantity of Hashish from a container on board a vessel "ZIM TOKYO" at Port Ashdode. Israel, which was alleged to contain 180 cartons of vacuum flasks shipped by M/s. V. J. Exports, Alwarpet, Madras. The Intelligence Officers of NCB, Madras searched four different premises in the early hours on 27-6-1994. One of such premises searched was the room in which this detenu was staying, which also housed his office. The officials claim that certain incriminating documents indicating involvement of the detenu in organised trafficking of Hashish were seized.
3. A statement was recorded from the detenu, who is stated to be a London-based Non-Resident Indian. His statement revealed that he was starting a gas project at Pondicherry with office at Madras, where gas will be filled in cylinders for various users. He knew one Venugopal, since he was working earlier in Faisal Fabrics in Gujarat. Through Venugopal, he came into contact with Nagarajan. He knew a person by name Maheshbhai alias Mahendrabhai alias Khalidbhai of Dubai as the main person behind smuggling activities. Khalidbhai arranged to procure drugs and transport them to Madras. Venugopal used to collect them either personally or through Arumugam and then the drugs will be exported by Nagaraj. Such exports were periodically made and one such export was caught at Israel. He was not aware from whom and wherefrom the said Hashish was purchased. When Maheshbhai enquired him about the delay in the consignment reaching Israel, he had verified the same. A small chit of paper which contained a typewritten number, is the number of the container in which narcotic drugs had been sent along with 180 cartons of vacuum flasks. On the same day, confession statement of Nagaraj was recorded, to be followed by recording of statements of Arumugam and Venugopal. On 2-7-1994, statements were recorded from Suresh and Kannan, who claimed, to have helped Arumugam and Nagaraj in packing narcotic drugs in cartons. Statement recorded from one Aleemuddin indicated that he had exported 180 cartons of flasks at the instance of Nagaraj and the same was allowed to be exported after physical inspection by Customs Officers. He was not aware whether any narcotic drug was smuggled. On 22-7-1994, officials had information that goods seized at Israel were Hashish. On 25-7-1994, the detenu was directed to be enlarged on bail on certain conditions. However, Nagaraj and four others were directed to be kept in remand. On 28-7-1994, impugned order was passed after follow-up action and the same was executed on 29-7-1994.
4. Mr. G. Ramaswami, learned Senior Counsel appearing on behalf of the petitioner, contended that non-application of mind, while passing the impugned order was so apparent. He pointed out that the order of detention stood issued to prevent the detenu from engaging in abetting in the procurement and export from India of narcotic drugs, whereas the grounds on which satisfaction stood arrived at, recite that it was to prevent the detenu from engaging himself in organised illicit traffic in narcotic drugs and psychotropic substances and as well engaging in abetting in the procurement and export of narcotic drugs and psychotropic substances. It was submitted, that narcotic drugs and psychotropic substances are distinct and different as was evident from Section 2(14) and Section 2(23) of the Narcotic Drugs and Psychotropic Substances Act. He further urged, that mere mention of the trade name mandrax would not suffice, but it should further be stated that mandrax will fall under any one of the specified categories appended to the schedule. He then referred to Section 2(e) of the PIT NDPS Act defining illicit traffic in relation to narcotic drugs and psychotropic substances and pointed out that narcotic drugs and psychotropic substances were two different and distinct entities and one cannot be confused with the other. Thereafter, he pointed out Section 3(1) of the PIT NDPS Act and submitted that preventive orders can be passed with a view to preventing the person concerned from engaging in illicit traffic in narcotic drugs and psychotropic substances, if it was necessary so to do. He argued that the word "and" found in between "narcotic drugs" and "psychotropic substances" must be read as "or" and that would be the only fair and reasonable construction. In other words, he contended that a person can be detained for engaging himself in illicit traffic either in narcotic drugs or psychotropic substances or both. But, once the impugned order referred to narcotic drug, being the foundation, for preventive detention, it should be held that the grounds which passed through the process of subjective satisfaction was in relation to narcotic drugs and not psychotropic substances. He again reiterated, the apparent difference in the nature of action mentioned in the order of detention and the grounds of detention and asserted that on the ground of non-application of mind, the impugned order will have to be struck down.
5. The second contention was, that the detenu had not been apprised of his right to make a representation to the detaining authority himself, who in the instant case, is the Joint Secretary to Government of India. Ministry of Finance, PITNDPS Cell. Non-apprisal of the said right was violative of Articles 21 and 22(5) of the Constitution. In this context, he referred to a decision of a Division Bench of this Court, which had taken note of the entire case law available on the subject till then.
6. The third submission was, that the detenu, on 17-8-1994, had deposited nine copies of his representation to the jail authorities for onward transmission. This representation had been disposed of only by the Central Government after a delay of 34 days, while the detaining authority had not yet disposed of his representation. According to Mr. G. Ramaswami, one of the copies of representation must have been suo motu forwarded by the jail authorities to the detaining authority, who, in his turn, must have considered and disposed of the same, apart from communicating the result of such disposal to the detenu.
7. Early, it was urged, that there has been a long and unexplained delay in disposal of representation forwarded by the detenu to the Central Government. Mr. G. Ramaswami particularly referred to the delay between 6-9-1994 and 19-9-1994 and commented that there was total silence as to what had happened in respect of this representation, for a solid 13 days.
8. The final ground urged was, that the last document referred to had come into existence at Madras on the evening of 26-7-1994 and the detention order stood passed on 28-7-1994. The material supplied to the detenu runs to about 1223 pages. The last document could not have been received at Delhi, on 26-7-1994, and the claim of the detaining authority, in his counter-affidavit, that all the records, which led to the passing of the impugned order, were in his custody even on 26-7-1994 cannot be true, at least in so far as the last document is concerned.
Mr. G. Ramaswami further submitted that it would not have been possible for the detaining authority to have perused such voluminous material in a single day (27-7-1994) and passed the impugned order on 28-07-1994. That was a fairly impossible task.
9. Mr. G. Ramaswami referred to certain decided cases, which we will refer to and consider at the appropriate stage.
10. Mr. V. T. Gopalan, learned Senior Central Government Standing Counsel representing the respondents, fairly conceded, "that there was a variation between the order of detention and the grounds of detention and posed a question" if that variation would affect the validity of the impugned order and invited us to ponder as to the effect of such variation. Expatiating his submission, he contended, that if the documents supplied to the detenu, contained material, to arrive at needed subjective satisfaction, not only in respect of narcotic drugs, but in respect of psychotropic substances as well, we must hold that this was a case where the principle of severability would come into operation. He submitted, that Section 2(e) of the PIT NDPS Act was very wide, taking in its fold narcotic drugs and psychotropic substances and, therefore, on the basis of one or other, be it in the grounds or the order, a preventive order could be validly passed. He further urged, that usage of "psychotropic substances" in the grounds must be held to be a surplusage. He fairly stated, that in several paragraphs in the grounds, contradictions do surface as to the cause of detention, but such divergence could not be held to have prejudiced the detenu. It did amaze us, when he submitted, that if the detaining authority had deviated and taken note of irrelevant material, while arriving at his subjective satisfaction, we must ignore such irrelevant material, ignore buttressal in the counter also, and scrutinise, if adequate material was available to sustain the impugned order. On the second contention, he submitted, that if the grounds of detention, did intimate, to the detenu, that he had a right to have his representation disposed of by the detaining authority, the position might have been different and so long as such right was not afforded to him in the grounds of detention, on the basis of the law laid down in State of Maharashtra v. Sushila Mafatlal Shah, , the detenu
cannot claim, that non-intimation of any such right would suffice to vice the impugned order. The same parity of reasoning would be applicable to the third contention, about non-forwarding by the jail authorities, a copy of the representation, to the detaining authority, said Mr. Gopalan.
11. As far as the delay in disposal of representation is concerned, Mr. Gopalan submitted, that the total period taken for disposal of the representation must be taken note of and the detenu cannot expect explanation for each and every day's delay, for, on any magic formula, detenu cannot ask this Court to hold in his favour. On the penultimate ground, he submitted that mandrax contains methaqualone, which is mentioned in the schedule as a psychotropic substance. He agreed that further mandrax does not find a place in the schedule and it was evident that it had not been made clear, that mandrax is a psychotropic substance, because of the methaqualone content. On the last ground of challenge, respondents' counsel contended, that he had no material available with him to show the manner in which, the last document dated 26-7-1994 had reached the detaining authority, on the same day. As far as the volume of material on which subjective satisfaction was arrived at vis-a-vis the capacity of the detaining authority to apply his mind to those documents and pass the impugned order, he had left it to be gauged by this Court, for, according to him, it was not an impossibility. In his turn, Mr. Gopalan learned Senior Counsel, cited some decided cases, which we will take note of in the course of our discussion.
12. We have audited the rival contentions with sufficient care. Under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, the Central Government or the State Government or any officer of the Central Government not below the rank of a Joint Secretary to that Government specially empowered for the purpose of that section by that Government, or any officer of the State Government not below the rank of Secretary to that Government specially empowered for the purpose of the Section by that Government, may, if satisfied with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it was necessary so to do, make an order directing that such person be detained. Apparently, the authorities who can make orders under this Section are : (a) the Central Government; (b) the State Government; (c) any Officer of Central Government as detailed in the Section; or (d) any officer of the State Government, as detailed in the Section itself. Under Section 3(3) of the Act, for the purposes of Clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order, of the grounds on which the order has been based, shall be made as soon as may be, after detention, but ordinarily not later than five days and in exceptional circumstances, for reasons to be recorded in writing, not later that 15 days from the date of detention. In view of Article 22(5) having been mentioned under Section 3(3) of the Act, a quick perusal of the said Article appears to be relevant. Article 22(5) reads, that when any person is detained in pursuance of an order made under any law, providing for detention, the authority making the order, shall, as soon as may be, communicate to such person, the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. A combined reading of Section 3(1) of the Act and Article 22(5) of the Constitution indisputably shows that the authority making the order has a duty cast upon him as soon as may be to communicate to such person the grounds on which the order has been made and shall also afford him the earliest opportunity of making representation against the order. If the authority making the order, as in the instant case, is the Secretary to Central Government specially empowered under Section 3(1) of the Act, he is bound to act under Article 22(5) of the Constitution relating to communication, while affording him the earliest opportunity of making a representation against the order passed by him.
13. Since we were initially referring to the power of the authorities who can pass preventive orders and their consequent relevance to Article 22(5) of the Constitution, in our opinion, it would be better to dispose of the second ground of challenge, even at the commencement. In the instant case, we need not have to refer to Section 9 of the Act relating to Constitution of one or more Advisory Boards by the Central and State Governments. However, we are bound to add that merely because a duty is cast on the Central Government and on each State Government to constitute one or more Advisory Boards under Section 9(a) of the Act, it does not necessarily follow that officers specially empowered by the Central Government or officers specially empowered by the State Government under Section 3(1) of the Act ceased to be detaining authorities, as soon as the orders of detention are passed and communicated, under Section 3(3) read with Article 22(5) of the Constitution. The Advisory Board also has a duty to consider any representation by the detenu, if one such is received by it, or the State or Central Governments, the latter two being bound to forward it, for consideration by the Advisory Board. Power to revoke orders of detention can be traced to Section 9(f) and Section 12 of the Act. There cannot be any divergence that disposal of a representation by the authorities concerned, in favour of the detenu would only lead to revocation of the impugned orders under Section 9(f) of the Act or under Section 12 of the Act. This power under Section 9(f) can be exercised only by the appropriate Government and not by specially empowered officers as is clear from the Section itself. However, the power under Section 12 of the Act is very wide. Opening words of Section 12(1) of the Act "Without prejudice to the provisions of Section 21 of General Clauses Act", is a sure assertion, that the provisions under Section 21 of General Clauses Act stand preserved. This Court had occasion to consider the question, of the duty cast on the empowered officer, to dispose of a representation forwarded by the detenu, irrespective of disposal of the some representation by the State and Central Governments, in H.C.P. No. 218 of 1993. That Division Bench, to which one of us (Arunachalam, J.) was a party, went into the entire case law available and by its order dated 27-8-1993 held "that the detenu has a right of his representation being disposed of by the detaining authority, who has the power of revocation, due to a combined reading of Section 12 of the Act read with Section 21 of General Clauses Act." The said Division Bench, after noticing the divergent views in Sushila Mafatlal Shah's case and Amir Shad Khan's case considered the law on precedents, and
thereafter observed as hereunder :
"Having noticed the law of precedents, by referring to a cross section of decided cases, it can easily be concluded, that in (Amir Shad Khan's case) Supreme Court had applied
its mind to Section 11 of the COFEPOSA Act and S. 21 of the General Clauses Act and analysed the provisions of both the Acts before arriving at a conclusion, that the detenu had a right, of his representation being disposed of by the detaining authority, who has power of revocation, due to a combined reading of Section 11 of the COFEPOSA Act and S. 21 of the General Clauses Act. Similarly, in our opinion, the decision of the Supreme Court in Amir Shad Khan's case, contains a principle which thus forms "that authoritative element" which, as observed by S. Ramachandra Aiyar, J. in
(FB), is often termed the ratio decidendi. It will not be possible for us to hold, as sought to be submitted by the learned Additional Public Prosecutor, that the observations of the Supreme Court in Amir Shad Khan's case were only casual observations and the consideration was indirect. As stated earlier, effect of the decision rendered by the Supreme Court in Amir Shad Khan's case, was on the foundation of the rights that the detenu had and the effects that would follow when that right mandated was sought to be denied. It was not a futile exercise that the Supreme Court had made while considering S. 21 of the General Clauses Act in conjunction with S. 11 of the COFEPOSA Act.
There is a vital distinction between preventive detention and punitive detention. Punitive detention is intended to inflict punishment on a person who is found by the judicial process to have committed an offence while preventive detention is not by way of punishment at all, but it is intended to prevent a person from indulging in activities injurious to Society. The power of preventive detention has been recognised as a necessary evil and it is tolerated in a free society in the larger interest of security of State and maintenance of public order. It is a drastic power to detain a person without trial. In that context if there are two views of the Supreme Court one conflicting with the other, we are of the view, that one in favour of the detenu will have to be applied by us. This observation of ours is of course in addition to our already expressed opinion. In Amir Shad Khan's case, the law enunciated is binding on us, since it was the outcome of a thorough thrashing out of the various provisions of COFEPOSA Act and General Clauses Act and also rendered by three Member Division Bench of the Supreme Court, while the decision of the Supreme Court in State of Maharashtra v. Sushila Mafatlal was rendered by
two Members Division Bench. The later decision has also taken note of the power to revoke an order of detention passed by the State Government, traceable to the provisions of Section 21 of the General Clauses Act, which power was prima facie absent in S. 11 of the Act. With due respect, we are unable to agree with the view expressed by a Division Bench of the Bombay High Court in Hiralal Ganeshmal Jain v. State of Maharashtra, (1993 Cri LJ 1209), that it was a matter of doubt, if the observations of the Supreme Court in Ibrahim Bachu Bafar's case (1985 Cri LJ 533) and in Amir Shed Khan's case (both rendered by a three Judges Bench) have the status even of obiter dicta and in any event even assuming that those observations would ordinarily be binding on them, they cannot have an overriding effect over the direct findings in Sushial, Mafatlal Shah's case (1989 Cri LJ 99) (decision by a two Judges Bench) and that the numerical strength of the Bench of the Supreme Court in that context was irrelevant. We have already given out our reasons for our conclusions and our discussion will reveal, that except in two cases, the view in unison, of the Supreme Court, appears to be in consonance with the view expressed in Amir Shad Khan's case (1991 Cri LJ 27(3)). It will not be possible for us to either erase totally or shadow out the observations of the Supreme Court in Amir Shad Khan's case, as not binding, though on a consideration of the relevant provisions of law in extenso connected with the liberty of a citizen, certain principles of importance have been enunciated. We are able to discern a clear clevage, in the Law of Precedents, as to when and when not the observations of the Supreme Court will be binding."
As far as this Court is concerned, the uniform view appears to be, that the detaining authority has a power of revocation and such power has been recognised by the Supreme Court in Amir Shad Khan's case . As a matter of fact, the Division Bench had also
though it fit, to grant leave to the State Government, to appeal to the Supreme Court, for the said Division Bench felt that the question involved was important and was bound to arise for verdicting quite often. In that context, the Division Bench observed as hereunder :
"We do visualise, a probable incongruity, in the event of an empowered officer, choosing to revoke an order of detention passed by him, after a representation to the State or Central Government stood rejected and that too on the same grounds, for under Section 12 of the Act read with Section 21 of the General Clauses Act, such power of revocation can be exercised at any time. All the authorities including the Advisory Board, come into the picture due to the Statute and exercise independent statutory powers conferred on them respectively. We are now concerned with the liberty of a citizen and his mandated right. This anomaly, if it can be so termed, will have to be resolved by the Legislature or by the terms of delegation itself and not by courts."
14. It will be now necessary to notice the observations of the Supreme Court in Amir Shad Khan's case which read as
hereunder (at pp. 2718, 2719 of Cri LJ) :
"Thus on a conjoint reading of Section 21 of the General Clauses Act and Section 11 of the Act, it becomes clear that the power of revocation can be exercised by three authorities, namely, the officer of the State Government or the Central Government, the State Government as well as the Central Government. The power of Revocation conferred by Section 8(f) on the appropriate Government is clearly independent of this power. It is thus clear that Section 8(f) of the Act satisfies the requirement of Article 22(4) whereas Section 11 of the Act satisfies the requirement of the latter part of Article 22(5) of the Constitution. The statutory provisions, therefore, when read in the context of the relevant clauses of Article 22, make it clear that they are intended to satisfy the constitutional requirements and provide for enforcement of the right conferred on the detenu to represent against his detention order. Viewed in this perspective it cannot be said that the power conferred by Section 11, of the Act has no relation whatsoever with the constitutional obligation case by Article 22(5)."
As the earlier Division Bench has stated, it is rather unfortunate, that the law laid down in Sushila Mafatlal Shah's case by a two Member Division Bench, was not brought to
the notice of the three Member Division Bench, decided Amir Shad Khan's case . If in the opinion of the Supreme Court, in Amir Shad Khan's case , the detaining authority, who
happens to be the Joint Secretary to Central Government, has a right to revoke the impugned order, he is duty bound to inform the petitioner that he has a such a right. In Amin Mohammed Qureshi v. Commissioner of Police, Greater Bombay, , the Supreme Court has stated as hereunder :
"The only other ground urged is that the detaining authority has not specifically mentioned in the grounds that the detenu has also a right to make a representation to it also besides making such representations to the Central Government and the State Government and therefore the earliest reasonable opportunity of making a representation as provided under Article 22(5) of the Constitution has been denied. This submission is made relying on some of the observations made by this Court in Amir Shad Khan's case . That was a case which arose under COFEPOSA Act
where there is no specific provision regarding the approval of the detention order by the State Government within 12 days. This aspect we have dealt with elaborately in our recent judgment in Writ Petition (Crl.) No. 364 of 1993 etc. Veeramani v. State of Tamil Nadu decided on 4-2-1994 Reported in , wherein we
held that unlike the provision of COFEPOSA Act, there is a provision in the National Security Act to the effect that the detention order will cease to remain in force for more than 12 days if in the meantime it is not approved by the State Government and therefore the authorities to whom the representation could be made would be the Central Government and the State Government, as the case may be, and not the detaining authority. Therefore the detaining authority is not under an obligation to tell the detenu that he can make a representation to it also."
On the observations aforestated, it is clear, that if an order of detention would cease to remain in force for more than 12 days, if, in the meantime, it is not approved by the State Government, the position may be different, in which event, representation could be made to the Central Government and the State Government, as the case may be, and not to the detaining authority. There is no dispute, that the provisions under Pit NDPS Act are in pari materia with COFEPOSA Act and one question of approval of orders of detention within 12 days, as found in the National Security Act or certain other enactments, do not surface. If the 12 days period for approval does not form part of Pit NDPS Act, on the law laid down by the Supreme Court, it is apparent that the detenu has an in-built right to be informed that he can forward a representation to the detaining authority who is bound to consider and dispose it of. To the same effect are the observations of the Supreme Court in Veeramani v. State of Tamil Nadu , which had taken note of the law laid down in Amir Shad Khan's case and Sushila Mafatlal Shah's case
. It will be relevant to extract those observations :
"The next question as to whom such representation should be made depends on the provisions of the Act and naturally such a representation must be made to the authority who has power to approve, rescind or revoke the decision. To know who has such power, we have to necessarily look to the provisions of the Act. So far as the Tamil Nadu Act with which we are concerned, we have already noted that any detention order made by the empowered officer shall cease to be in operation if not approved within 12 days. Therefore, it is clear that the Act never contemplated that the detaining authority has specific power to revoke and it cannot be inferred that a representation can be made to it within the meaning of Article 22(5). The provisions of the Act are clear and lay down that the detention order has to be approved within 12 days and where there is no such approval, it stands revoked. Therefore the representation to be made by the detenu, after the earliest opportunity was afforded to him, can be only to the Government which has the power to approve or to revoke. That being the position the question of detenu being informed specifically in the grounds that he had also a right to make a representation to the detaining authority itself beside the State Government does not arise.
..... Therefore, even in the context of Article 22(5), the scheme of the particular Act has to be examined to find out the authority to whom a representation can be made. The observations made in Ibrahim Bachu Bafsa's case (1985 Cri LJ 533) (SC) and Amir Shad case (1991 Cri LJ 27(3) (SC) under COFEPOSA Act do not change the legal scenario under the other Acts where the legal implication in the context of Article 22(5) are of different nature but in conformity with the spirit and avowed object underlying Article 22(5)."
On the available law, we have to necessarily hold that non-appraisal to the detenu of his right to make a representation to the detaining authority himself, would be violative of Articles 21 and 22(5) of the Constitution of India. As we have already noticed, the only submission made by Mr. Gopalan, in reply to this ground, was that the detaining authority has stated in paragraph 13 of his counter-affidavit that he was of the opinion that he had no power to consider the representation in view of the law laid down in Sushila Mafatlal Shah's case . It is now apparent, that this vital question has
been referred to a Fuller Bench of the Supreme Court. However, till authoritative pronouncement is made available by the Supreme Court, we are bound to follow the law laid down in Amir Shad Kahan's case and in that view, the submission of Mr. Gopalan
cannot be upheld. We are of the firm opinion that the detenu is bound to succeed on this ground of challenge.
15. The first contention, which we are taking up as the second, for consideration, is equally of vital importance. To appreciate this contention it will be necessary to extract relevant portions of the order of detention and the grounds of detention. In the order of detention, the detaining authority has stated that the impugned order stood passed "with a view to prevent him from engaging in abetting in the procurement and export from India of narcotic drugs." However, in the grounds of detention, the following passages read differently. It would be better to extract those paragraphs :
"47. From the facts mentioned herein above and materials placed before me, I have no hesitation in holding that you have knowingly engaged yourself in organised illicit traffic of narcotic drugs and psychotropic substances as is evident from your statement and other case records and if not prevented you will continue indulging illicit traffic in narcotic drugs." ..........
"49. I have carefully gone through all the documents referred to herein above. On the basis of statement and documents mentioned herein above. I have no hesitation in arriving at the conclusion that you had engaged yourself in organised trafficking of hashish and mandrax from India including abetment in the procurement and export.
50. Even though prosecution proceedings under the Narcotic Drugs and Psychotropic Substancees Act, 1985 are likely to be initiated against you in the matter. I am satisfied that in view of the facts stated above, it is necessary to detain you under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing you from engaging in abetting in the procurement and export of narcotic drugs and psychotropic substances."
While the order of detention indicates preventive action having been taken on the basis of narcotic drugs in abetting the procurement of which and export from India the detenu was engaged, we find from the grounds of detention, that the detaining authority had felt it necessary to detain the petitioner, with a view to prevent him from engaging in abetting procurement and export of narcotic drugs as well psychotropic substances. To reiterate, the order of detention does not take in its fold, psychotropic substances. In paragraph 49 of the grounds, petitioner had been told that he had engaged himself in organised trafficking in hashish and mandrax from India including abetment in the procurement and export. Mandrax is stated to be a psychotropic substance but it has not been made clear as to how it was so. However, the order of detention does not take note of psychotropic substances. This paragraph in the grounds lays emphasis on the engagement of the detenu in organising trafficking in hashish and mandrax, which included abetment in the procurement and export. It is fairly apparent from paragraph 47 of the grounds, that the detaining authority had chosen to base his subjective satisfaction, on the foundation of the detenu, having engaged himself in organised illicit traffic of narcotic drugs and psychotropic substances, as was evident from his statement. That there is vital divergence between the order of detention and the grounds of detention stands conceded. However, respondent's counsel sought to support the impugned order by submitting that in paragraph 47 of the grounds, the detaining authority has stated, that the detenu has to be prevented from continuous indulging in illicit traffic in narcotic drugs alone and similarly in paragraph 48, the detaining authority had mentioned that though the detenu had been granted bail, he was satisfied that he would indulge in illicit traffic in narcotic drug in future and therefore the validity of the impugned order cannot be challenged. But, however, Mr. Gopalan had to agree that in paragraph 50 of the grounds, the prevention sought was, not only regarding narcotic drugs, but in respect of psychotropic substances as well. It is apparent, that the detaining authority in the process of arriving at his subjective satisfaction was quite confused as to the purpose for which, he had decided to clamp the impugned order. Mr. Gopalan submitted, that if material was available for narcotic drug," mention of "psychotropic substance", can be severed easily, by this Court invoking the provisions of Section 6 of the Act. He also submitted, that it the alternative, irrelevant reference made by the detaining authority in the grounds, can be escheved and relevant material alone taken note of, to uphold the impugned order. We are afraid that we cannot sustain either limb of the contention advanced. The question of severability can arise only if there is more than one ground. That the impugned order sood passed only on a single ground is fairly evident from paragraph 19 of the counter-affidavit sworn to by the first respondent, which reads as hereunder :
"I arrived at a subjective satisfaction that the petitioner is involved in abetting in the procurement and export of narcotic drug as set out in the order. I submit that there is a reference to psychotropic substance also in the grounds of detention. But I have restricted the order of detention only to prevent him from engaging in abetting in the procurement and export from India of narcotic drugs. Therefore, the petitioner cannot make it a grievance that he has been deprived of his right of making an elaborate, proper and correct representation and is left to wonder as to what case he has to meet."
Needless to reiterate, that if the impugned order stood passed on a single ground, there is no scope, for entertaining any argument, on severability. It cannot be gainsaid that grounds of detention should be in support of the order of detention and cannot be burdened with extraneous material. That would be a parameter, indicating want of application of mind. In G. M. Shah v. State of J and K. , the Supreme Court has stated as hereunder (at p.
"A combined reading of the order of detention and the grounds furnished to the detenu shows that at the time when the order was made, the District Magistrate either had no material relevant to the security of the State on which he could act or even if he had information of those grounds, he did not propose to act on it. He, however, tried to support the order of detention by stating in the course of the grounds that by the detenu remaining at large, the security of the State was likely to be prejudiced." That was a case where the order of detention intended to prevent the detenu from acting in any manner prejudicial to the maintenance of public order, while in the grounds of detention, he was informed, that his remaining at large, was prejudicial to the maintenance of public order and also to the security of the State. In the Pit NDPS Act, a narcotic drug any psychotropic substance are different and distinct and though the words "illicit traffic" defined under Section 2(e) of the Act will be wide enough, if the detenu had been told in the order of detention that he was to be prevented from engaging himself in abetting in the procurement and export from India of narcotic drugs, a departure cannot be made in the grounds of detention informing him that he had engaged himself in organised illicit traffic in narcotic drugs and psychotropic substances and that was the main plank for clamping the impugned order. Again in Vijay Kumar Dharna v. Union of India the Supreme Court stated
as hereunder (at. 1188 of Cri LJ)
"In the Gurmukhi version of the detention order, it was stated that the detention order had become necessary 'with a view to preventing him from smuggling goods and from abetting the smuggling of goods.' It is, therefore, clear that according to the Gurmukhi version the detenu was taken in detention under clauses (i) and (ii) of S. 3(1) of the Act. However, when we turn to the grounds of detention the detaining authority records his satisfaction as under :
"I am satisfied it is necessary to detain you under COFEPOSA Act, 1974 with a view to preventing you from concealing, transporting smuggled goods as well as dealing in smuggled goods.'
This satisfaction clearly reflects the grounds contained in clauses (iii) and (iv) of S. 3(1) of the Act. The above satisfaction does not speak of smuggling of goods or abetting the smuggling of goods which are the grounds found in the Gurmukhi version of the detention order. There is, therefore, considerable force in the contention urged by the learned counsel for the appellant that on account of this variance the detenu was not able to effectively represent his case before the concerned authorities. In fact according to him the appellant was confused whether he should represent against his detention for smuggling of goods and/or abetting the smuggling of goods or for engaging in transporting and concealing smuggled goods and/or dealing in smuggled goods. Besides the English version of the detention order was only for abetting the smuggling of goods. The satisfaction recorded in the Gurmukhi version of the grounds for detention is not consistent with the purpose for detention found in the detention order. It left the detenu confused whether he should represent against the grounds in the detention order or the satisfaction recorded in the grounds of detention. We are, therefore, of the opinion that because of this variance the detenu was unable to make an effective representation against his detention and was thereby denied his right under Art. 22(5) of the Constitution."
The law laid down by the Supreme Court in the aforestated two cases will squarely attract the instant facts. That the detenu was unable to make an effective representation against his detention, due to this variance and was hence denied his right under Article 22(5) of the Constitution is further reinforced, from the silence of the authorities concerned, in not having clarified this discrepancy, though the detenu had specifically asked for such clarification, through his representation. Relevant portions of the representation read as hereunder :
"Whereas in the grounds of detention it is mentioned that the order has been issued to prevent me from organising trafficking in Hashish and Mandrax from India including the abetment in procurement and export. It is very difficult to understand much less to reconcile. It is further mentioned in the grounds of detention that the detention is being made to prevent me from engaging in procurement and abetting and export of narcotic drugs and psychotropic substances. This is not understandable vis-a-vis the order that has been served upon me. It is absolutely essential to clarify the said allegation in the grounds of detention."
However, Mr. Gopalan submitted, that each any every grievance made in the representation need not have to be answered and it would suffice, if the representation is disposed of as a whole. We are unable to agree, on the available facts in the instant case. Disposal of representation at this stage does not put an end to the right of the detenu to plead for revocation of the order, based on the supply of other material requisitioned by him. He may still be in a position to show prejudice, due to divergence in the order of detention and the grounds of detention and the consequent injury that stood occasioned. In Liyakat Ali v. Government of India (1990 Mad LW Crl 242), a Division Bench of this Court had chosen to answer this very question. It was contended before the Division Bench, that through his representation, the detenu had wanted to be enlightened as to the Section of the Act, which he had violated and the order rejecting his representation did not give any reply to has query. He further contended that the documents annexed to the grounds of detention ran into 200 pages and that he cannot be expected to wade through all the pages to find out the essential details and that the detenu must be made aware of the opinion of the detaining authority as to what was the section the detenu would have violated. Answering this contention, the Division Bench stated that there was some force in the contention and added that no doubt the detention order would not be made invalid for the mere absence of mention of the Section. But, when the detenu has made a specific request to have that section made known to him, that request should have been acceded to and the failure to do so, vitiated the order. In the instant case, the detenu is on stronger ground. The same view has been taken by other Division Benches as well.
16. We are still bound to consider if there exists any scope for severability. Useful reference can be made to the law laid down by the Supreme Court in Vishist Narain Karwari v. State of U.P. . In that case of detention under National Security Act, the Supreme Court stated, that Section 5A, the section providing for severability, can only apply where there were two or more grounds covering various activities of the detenu, each activity being a separate ground itself. In that event, if one of the grounds was vague, non-existent, not relevant, not connected or not proximately connected with such person or invalid for any other reason, whatsoever, then it shall not vitiate the order of detention. It was further stated as hereunder by the Supreme Court (at pp. 1314, 1315 of Cri LJ) :
"It is not the case that this impugned order has been made on two or more grounds covering various activities of the detenu, but on the other hand the order has been passed on the sole ground relatable to a single incident. The conclusion arrived at by us is only on the basis that the aforesaid extraneous materials, placed before the detaining authority might have influenced the mind of the detaining authority, but not on the ground that one of the grounds of detention order has become invalid or inoperative for the reasons mentioned in Section 5(A)(a)."
However, Mr. V. T. Gopalan, learned Senior Counsel appearing on behalf of the respondents, placed for our perusal the judgment of the Supreme Court rendered in Attorney General for India v. Amratlal Prajivandas by a Nine Member Constitution Bench, and contended
that, on the facts available in the instant Habeas Corpus Petition, the argument of severability may have to be upheld. We are unable to agree with him, for the Supreme Court while noticing, the concerned section being in two parts, clearly observed "that where an order of detention is made on more than one ground, it must be deemed that there were as many orders of detention as there are grounds. If this creation of legal fiction was competent, then no question of inconsistency between this section and Article 22(5) can arise." A reading of Section 6 as well as the law laid down, make it abundantly clear, that the question of severability can only arise when detention is made on two or more grounds and not on the basis of a single ground, as has been admitted in the instant case. Once the grounds of detention had taken note of material not relevant to the purpose of detention, mentioned in the order, it will be unfair for the respondents, to ask us, to eschew that portion, for we do not know as to the nature of subjective satisfaction that the detaining authority would have arrived in the absence of such material to detain the petitioner. The subjective satisfaction would certainly have been affected, in that event, either way. We accept this ground of challenge.
17. Now that we have concluded that the detenu is bound to succeed on these two grounds of challenge, we do not deem it necessary to consider the other grounds of challenge, though they may have some force, which, of course, may have to be gone into in greater depth, before acceptance or rejection. We quite see, that the delay quotient in disposal of representation or the possibility of the detaining authority having waded through 1223 pages of materials within a short period or the possibility of the availability of the last document at Delhi on 26-7-1994, are all questions of fact needing detailed scrutiny, before definite findings can be recorded. That exercise does not appear to be necessary in the instant case, because the detenu is entitled to succeed on the first two grounds.
18. Impugned order of detention is set aside. The detenu is directed to be set at liberty forthwith, unless his detention is otherwise required. This Habeas Corpus Petition is allowed.
19. Petition allowed.