Holding

The preventive detention order under the NDPS Act was valid despite the detenu being already in custody, and the statutory communication time‑limits do not apply to the declaration under Section 10(1).

Summary

The wife of Syed Ali Raza Shafiq Mohammed filed a writ petition challenging his preventive detention under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. The detenu was already in judicial custody with his bail application rejected, and the State sought to detain him to prevent future drug‑trafficking activities. The Supreme Court examined whether a detention order is valid when the person is already in custody, whether the material before the detaining authority justified the order, and whether the statutory time‑limits for communicating grounds and serving the declaration under Section 10(1) were complied with. Relying on the detenu’s own confessional statements, the seizure of large quantities of narcotics, and the authority’s assessment that he could be released on bail and resume illicit activities, the Court held the detention lawful. It also held that the five‑day/ fifteen‑day rule for communicating grounds does not apply to the declaration under Section 10(1), and that any delay in serving the declaration or considering representations was explained. Consequently, the petition was dismissed.

Issues considered

The legality of preventive detention under Section 3(1) when the person is already in judicial custody.
Whether the material before the detaining authority justified the detention order.
Applicability of the five‑day/ fifteen‑day communication rule of Section 3(3) to the declaration under Section 10(1).
Whether the delay in serving the declaration and in considering the detenu’s representations violated Article 22(5) of the Constitution.
Whether the detention order should be set aside by analogy with the orders quashed in Rai Chand Shah and Jai Lal Vora cases.

Legislation cited

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988s. 10(1), s. 3(1), s. 3(3)

Subjects

preventive detentionnarcotic drugsbailSection 3 NDPS ActSection 10 NDPS Actcommunication of groundsArticle 22(5) Constitutiondelay in service of declarationdetention while in custody

Judgment

SMT. AZRA FATIMA
A
v.
UNION OF INDIA AND 01HERS

WLY 12, 1990

B [B.C. RAY AND N.M. KASLIWAL, JJ.]

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988: Section 3(1), 3(3) and 10( 1)-Detention- .,._
Communication of grounds-Principle of five days and fifteen days-
Jnapplicable in respect of declaration. Y
c The petitioner filed a writ petition in the High Court challenging
the detention of her husband, Syed Ali Raza Shafiq Mohammed, under
section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988. The detenu was then already in jail
as he was involved in a case under the Act, and his bail application in ~
D that case had been rejected. The Division Bench of the High Court
dismissed the writ petition. '

Before this Court in the Special Leave Petition it was inter-alia
contended on behalf of the detenu that: (i) the mere possibility of the
detenu's release on bail was not enough for preventive detention unless
E there was material to justify the apprehension that his detention would
be necessary in order to prevent him from engaging in illicit trafficking
in narcotic drugs and psychotropic substances, in case of his release on ~
bail; (ii) the detention orders of Rai Chand Shah and Jai Lal Vora, who
were arrested and detained in the same raid, having been struck down
by the High Court on ~he ground that the medical report in respect of ~-
F the injuries sustained by Rai Chand Shah was placed in a truncated
form before the detaining authority, the detention order of the detenu
should also be set aside as it suffered from the same vice; (iii) though the
declaration was issued under Sec. 10(1) of the Act on 20.1.1989 but the -(
same was served on the detenu on 10.2.1989 after an unexplained delay
of 21 days; and (iv) there was in an inordinate and unexplained delay in
G considering the representations made by the detenu.

On the other hand, it was contended on behalf of the respondents
that: (i) it would depend on the facts and circumstances of eah case
whether a detention order was to be passed or not in case of a person
who was already in custody; (ii) the detaining authority could take into ,l -
H account the nature of the antecedent activities of the detenu in order to

268
AZRA FATIMA V, U.O.I. 269

arrive at the conclusion that it was likely that after his release from
custody he would indulge in criminal activities and it was necessary to A
detain him in order to prevent him from engaging in snch activities; and
(iii) in the present case there was complete awareness in the mind oUhe
detaining authority that if he was released on bail he was likely to
indulge in the criminal activities.
-.-· B
Dismissing the special leave petition, this Court,

HELD: (1) The material placed before the detaining authority
and the facts mentioned in the grounds of detention clearly go to show
that the detaining authority was fully aware that the bail application
filed by the detenn had been rejected. The detaining authority was also
conscious of the fact that the two other detenus who were arrested and c
detained in the same raid had already been released on bail. [277B-C]

(2) The antecedents of the detenu which were clear from his own
statement went to show that he was initiated in drug trafficking in 1984
and employed as a delivery boy on Rs.30 per day and within a short D
span of four years had himself started buying and selling Narcotic
Drugs and amassed huge movable and immovable properties in
Bombay. In the present raid itself hereoin and Mandrax tablets worth
Rs.1, 13,42,000 were seized from the ownership and possession of the
detenu. [277C-D]
E
(3) The detaining authority after taking into consideration the
material placed before him, arrived at the conclusion that the detenu
being in judicial custody may under the normal law of the land be
granted bail and Ile. in a position to continue to pursue his nefarious
activities. [277E]
F
( 4) The detaining authority in these circumstances considered it
necessary to invoke the law of preventive detention under the Act to
prevent the detenu from indulging in prejudicial activities in future. In
these circumstances, it cannot be said that the order of detention was
illegal on the ground that it was passed while the detenu was already in
custody. [277F] G

(5) The facts and circumstances of each case have to be taken into
consideration in the context of considering the order of detention in the
case ofa detenu who is ali'eady in jail. [273G J

N. Meera Rani v. Government of Tamil Nadu, JT (1989) 3 SCR H
'
270 SUPREME COURT REPORTS [1990] 3 S.C.R.

478; Dharmendra Sugan Chand Chelwat v. Union of India, [1990] 1
A SCC 746; Sanjeev Kumar Aggarwal v. Union of India, JT (1990) 2 SCC
62; Smt. Shashi Aggarwal v. State of U.P., JT (1988) 1 SC 88 and
Ramesh Yadav v. District Magistrate, Etah, [1985] 4 SCC 232, referred
to.

B (6) A perusal of the orders of the High Court quashing the deten-
tion orders of Rai Chand Shah and Jai Lal Vora shows that the basis for
the detention orders were their confessional statements. The High
Court In this regard had observed that the confessional statement of Rai
Chand Shalr--which also formed integral and vital part of the grounds
of detention of Jai Lal Vora-being product of threats and injuries
sustained by hin1 and further his medical report having been placed in
C truncated form before the detaining authority, their detention became
invalid. Bot, so far as the case of the present detenu is concerned, his
detention was based on entirely distinct and separate materials includ-
ing his own confessional statements. The basis of the grounds of deten-
tion of the present detenu is not founded on the truncated form of
D medical report of injuries snstained by Rai Chand Shah. Thus the pre-
sent detenu cannot take advantage of any orders passed by the ffigh
Court declaring detention orders ofRai Chand Shah and Jai Lal Vora as
illegal. [278A-EJ

(7) So far as the provision of Sub-Sec. (3) of Sec. 3 of the Act is
E concerned, it clearly provides that for the purposes of clause (5) of Art.
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 made shall be made as soon as may be after the detention, but
ordinarily not later than five days, and in exceptional circumstances
and for reasons to be recorded in writing, not later than fifteen days,
F from the date of detention. This provision thus relates to the communi-
cation of the grounds of detention. [279B-C I

(8) The principle of five days and fifteen days as provided In
Sub-section (3) of Section 3 of the Act relating to communication of
grounds of detention cannot be applied in respect of declaration issued
G under Sec. 10(1) of the Act. [280F]

(9) There is no force in the contention that there was an inordi-
nate delay in considering the representations submitted by the detenu.
The High Court has given adequate and detailed reasons in holding that
the delay has been explained by the counter affidavit filed by the
H respondents. [281A-B]
AZRA FATIMA v. U.0.1. [KASLIWAL, J.] 271

CRIMINAL APPELLATE JURISDICTION: Special· Leave
A
~- Petition (Criminal) No. 2531of 1989.
From the Judgment and Order dated 29.9.1989 of the Bombay
High Court in Criminal Writ Petition No. 87 of 1989.

U .R. Lalit and Mukul Mudgal for the Petitioner. B

·'-./~ Ashok H. Desai, Solicitor General, Ashok Srivastava and Ms.
Sushma Suri for the Respondents.

The Judgment of the Court was delivered by

KASLIW AL, J. This special leave Petition is directed against the
c
Judgment of the Bombay High Court dated 29th September, 1989
~· dismissing Criminal Writ Petition No. 87 of 1989.

Syed Ali Raza Shafiq Mohammed was detained by an order of
detention passed under Section 3( 1) of the Prevention of Illicit Traffic D
in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter
referred to as the Act) dated 19.12.88 by the Secretary (II) to the
Government of Maharashtra, Home Department. The detention order
and the grounds of detention were given to the detenu on 20th
December, 1988. It may be mentioned that on 19.12.88 the detenu was
already in jail as his bail application had been rejected. The wife of the E
detenu filed a writ petition before the Bombay High Court challenging
the detention of her husband Syed Ali Raza Shafiq Mohammed. The
Division Bench of the High Court dismissed the writ petition by order
dated 29th September, 1989. The wife of the detenu has now filed the
present Special Leave Petition aggrieved against the Judgment of the
Bombay High Court. Learned counsel for the petitioner raised the F
following submissions before us:

( 1) There were no prospects of the detenu being enlarged on bail
as he was involved in a case under the Act where the offence
was punishable with minimum sentence of ten years. The
bail application filed on behalf of the detenu was rejected by G
the Metropolitan Magistrate and the detenu had not filed
any application for bail either in the Sessions Court or in the
High Court.

(2) That detention orders of Rai Chand Shah and Jai Lal Vora
had already been struck down by the High Court on the H
272 SUPREME COURT REPORTS [1990] 3 S.C.R.

A
ground that the medical report in respect of the injury ~
sustained by Rai Chand Shah was placed in a truncated form
before the detaining authority. The detention order of the
present detenu also suffers from the same vice and as such
his order of detention should also be set aside.

B (3) That a declaration was issued under Sec. 10 ( 1) of the Act on
20th January, 1989 and the said declaration was served on
the detenu after an unexplained delay of 21 days. y
(4) The detenu submitted a representation on 31.1.89 which was
jointly addressed to the Government of Maharashtra and the
Government of India and the Hon'ble Advisory Board for
......
c revocation of the impugned order of detention. The State
Government rejected the representation by its reply dated
21.2.89 and the Central Government by its reply dated
3.3.89. Thus there was an inordinate and unexplained delay
in considering the said representations of the detenu and this
D violated the right of the detenu under Art. 22(5) of the Con·
stitution of India. The order of detention is illegal on this
count also.

We shall deal with the above contentions seriatem. With regard
to the first contention it was submitted by the learned counsel that the
E detenu was already in custody and his bail application had also been
rejected and there was no likelihood of the detenu being released on
bail in respect of the alleged offence under the Act where the !
minimum sentence of imprisonment was ten years. It was submitted
that the mere possibility of his release on bail was not enough for
preventive detention unless there was material to justify the apprehen-
F sion that the detention would be necessary in order to prevent him
from engaging in illicit traffic in narcotic drugs and psychotropic sub-
stances, in case of his release on bail. A mere possibility of release on
bail and a bald statement that the detenu would repeat his criminal
activities was alone not sufficient to sustain the order of detention. It
was further contended that the detaining authority did not apply its
G mind to this aspect of the matter, that the detenu was already in
custody and his bail application having been rejected there was no
possibility of his being released on bail in a serious offence under the
Act. Reliance in support of the above contention was placed on recent
decisions of this Court in N. Meera Rani v. Government of Tamil Nadu
& Anr., JT 1989 (3) SC 478 and Dharmendra Sugan Chand Chelwat. v.
H Union of India & Ors., [1990] 1SCC746.
AZRA FATIMA v. U.0.1. [KASLIWAL, J.I 273

On the other hand Learned Solicitor General contended that it
would depend on the facts and circumstances of each case whether a A
->y detention order is to be passed or not in case of a person who was
already in custody. An order of detention can be validly passed against
a person in custody where the detaining authority was already aware of
such facts and it is satisfied that the detenu is likely to be released from
custody in the near future. The detaining authority can take into B
account the nature of the antecedent activities of the detenu in order
---- to arrive to the conclusion that it is likely that after his release from
'y.custody he would indulge in criminal activities and it was necessary to
· detain him in order to prevent him from engaging in such activities in
the present case there was complete awareness in the mind of the
detaining authority about the detenu being in custody and that if he is
released .on bail he is likely to indulge in the criminal activities. The c
detaining authority was not only aware that the detenu was in jail but
also noted the circumstances on the basis of which he was satisfied that
~-the detenu was likely to come out on bail and continue to engage
himself in the criminal activities. It was submitted that the High Court
has considered this aspect of the case and has given detailed reasons D
for upholding the order of detention and there is no ground or justifi-
cation for interfering in the order of the High Court. Reliance in
support of the above contention was placed on Sanjeev Kumar Aggar-
wal v. Unionoflndia&Ors.,JT [1990J2SC62. ·

-~ We have given our thoughtful consideration to the arguments E
advanced by Learned counsel for the parties on the above point. The

-
latest decision of this Court on the above point is Sanjeev Kumar
Aggarwalv. Union of India & Ors., (supra) decided on 4th April, 1990
in which all the earlier cases decided by this Court have been con-
sidere.d including the. cases of N. Meera Rani v. Dharmendra Sugan
Chand Chelwat (supra) on which reliance has been placed by the F
Learned counsel for the petitioner. It was observed in Sanjeev Kumar
.l.- Aggarwal's case that no decision of this court has gone to the extent of
holding that no order of detention can validly be passed against a
person in custody under any circumstances. Therefore, the facts and
circumstances of each case have to be taken into consideration in the
context of considering the order of detention in the case of a detenu G
who is already in jail. The counsel for the detenu in the above case
strongly relied on Smt. Shashi Ag1<arwal v. State of U.P. & Ors., JT
[1988] 1SC88 and Ramesh Yadav v. District Magistrate, Etah & Ors.,
l 1985 J 4 sec 232 and contended that the bail application could be
opposed if moved or if enlarged the same can be questioned in a higher
court and on that ground the detention order should be held to be H
274 SUPREME··COURT REPORTS [1990] 3 S.C.R.

invalid. The Court negatived the above contention by observing that in
A N. Meera Rani's case a Bench of three Judges noted the above obser- ~
vations in Smt. ShashiAggarwal's case and Ramesh Yadav's case and it
was said that they were made on the facts of those particular cases. The
Court further held in the above case that on the material relied upon
by the detaining authority it could not be said that there was no aware-
B ness in the mind of the detaining authority about the detenu being in
custody and that if he is released on bail he is likely to indulge in the >-
pre judicial activities.

If we examine the facts of the case before us as stated in the
grounds of detention it would be clear that on the basis of specific
information officers of the Narcotics Control Bureau, Bombay
c searched room No. G-2, Purab Paschim Apartments, Gilbert Hill
Road, Munshi Nagar, Andheri (West), Bombay-58 and recovered 56
Kgs. 650 gms. of Heroin (33 Kgs. 150 gms. white and 23 kgs. 500 gms.
brown) and 4000 Mandrax Tablets (Methaeualone) totally valued at
Rs.1, 13,42000 on 21.10.88.
D
One Mr. Syed Asgar Ali was found in the room. During the
course of the search another person named Abdul Sattar Abdul Samad
came on Motorcycle No. BLC 7768 Make Hero Honda and entered
into the premises. Thereafter, two more persons came into the pre-
mises who gave their names as Ali Raza Shafiq Mohamed (detenu in
E the present case) and Thakur Singh. The Officers also searched and ~
seized a Bajaj Scooter MAQ 169, the Motorcycle No. BLC 7768 and
Fiat Car No. MMH 4348 which were parked in the compound of the
said society. According to the present detenu the said three vehicles -
belonging to him were used for transporation of Narcotic Drugs.

F Telephone No. 6288769 was found installed in the premises. It
was subscribed by one Shirish Parikh K. 18 Azad Nagar Society, Juhu
Scheme, Road No. 7, Bombay-56. The detenu disclosed that he was
living in Flat No. 15, 4th Floor, Chandra Co-op. Housing Society Ltd.
Dawood Baug, Andheri, Bombay-58, which was also searched on
21.10.88 but nothing incriminating was found in the flat. Telephone
G No. 6284105 was found installed there, which is subscribed by the
detenu. The detenu also disclosed that he was having two shops (i) Mis
Ali Decorators, G-1, Parag Niketan, 10th Road, Juhu, Bombay-
400 049 (ii) M/s Ali Decorators, Shop No. 9, A-Wing, Twin Tower,
Lokhandwala Complex, Andheri (West), Bombay-58 both of which
were searched on 21.10.88 and some documents were seized from the
H former shop. Nothing was seized from the 2nd shop.
AZRA FATIMA v. U.O.I. {KASLIWAL, J.) 275
•
The statements of the detenu were recorded on 21.10.88,
22.10.88 and 7.11.88 under Section 67 of the NDPS Act, 1985. With
regard to the statement given by the detenu on 21.10.88 it was
mentioned as under in the grounds of detention.

"In your statement of 21.10.88 you inter-alia, stated that
yon have a business of Video Libraries and Marriage B
decorations; that you own the property and vehicles
mentioned above; that you were initiated into drug traf'
ficking some time in 1984 by one Anwar, owner of Anwar
Star Petrol Pump Crawford Market, that in the beginning
you were employed as a delivery boy on a compensation of
Rs.30 per day; that you used (o deliver Heroin to customers c
on the road side; that after sometime you started procuring
Heroin from Pathans and repacking it in small packets and
you used to store it in public toilets with the help of Munici-
pal Sweepers and sell the same: that you used to buy
heroin for Rs.16,000 to 20,000 and sell it for Rs.18,000 to
25,000 per K.g. that you were making a profit of Rs.4,000 D
to 5,000 that your main selling points were Colaba and.
Nariman Point; that there were a number of brokers hover-
ing around the above places who contact the customers;
that you gave samples to brokers who showed them to the
customers; that if a sample was approved and the price
agreeable, then you used to ask the purchaser to meet you E
at some point in Juhu or Andheri or some other places, that
you used to pick up the required quantity of Heroin and
deliver it to the customer and collect the money; that
initially you were storing the Heroin in your flat and later
on you used to store it in the said room No. G/2, Purab Aur
Paschim Apartments, Gilbert Hill Road, Andheri (W), F
Bombay-58. As regards the source of the Heroin and
Mandrax tablets you stated that you acquired 29 kgs. of
white Hereoin in instalment from one Mangal Pandey of
Banaras and the remaining white hereoin from one
Raichand Chandmal Shah, that 25 kgs. of Brown Heroin
was purchased from one Asgar of Phulgalli, Bhendi Bazar G
who has since died; that you did not know the address of
Mangat Pandey, that you purchased the Heroin on credit;
that over the last about 3 1/2 years you must have sold 300
kgs. of Heroin that all the movable and immovable pro-
perty acquired by you has been purchased from the profits
from drug trafficking; that your income from legal business H
276 SUPREME COURT REPORTS [1990) 3 S.C.R.

of Video library and decoration is about Rs.2,000 per
..
A
month."

The statement recorded on 22.10.88 as mentioned in the grounds
of detention is reproduced as under:

B "In your next statement of 22.10.88 you stated that because
you had to make 3-4 trips to your native place and that was
the reason why such a large quantity of heroin was lying
with you; that you were keeping one car and two wheeler
because you required them for transporting/selling of
Mandrax tablets and it is advisable to use different vehicles
in this business; you further stated that Abdul Sattar and
c your brother Syed Asghar Ali were not involved in this
business and that they did not know that you are dealing in
heroin; they were present in the room where heroin was
seized on 21.10.88; because you had sent them to supervise
masonry work''
D
The detaining authority further made the following observations
in the grounds of detention:

"You were arrested on 22.10.88 and produced before the
Additional Chief Metropolitan Magistrate (Holiday Court)
E on 23.10.88 who remanded you to Judicial Custody till
4.11.88 which was extended from time to time. You also
filed application for bail on 21.11.88 which was rejected by
the Addi. Chief Metropolitan Magistrate, 8th Court,
Bombay.

F It may be further important to note that in the grounds of deten-
tion the detaining authority had noted that the other detenus Shri
Raichand Shah and Sh. Jailal Keshavlal Vora were already released on
bail on 18.11.88 on furnishing a bail for an amount ofRs.1,50,000 each
in cash. After taking note of all the above circumstances the detaining
authority made the following observations in respect of the detenu
G having a likelihood of being released on bail:

"It is clear that there is a ring of traffickers in heroin and
Mandrax tablets in Bombay and you are a part of the ring
and you have been habitually engaging yourself in posses-
sion, sale, purchase, transportation and storage of narcotic
H drugs and Psycholtropic substances. I am aware that you
AZRA FATIMA v. U.0.1. (KASLIWAL, J.] 277

are still in judicial custody but I am also aware that under
A
the normal law of the land you may be granted bail and be
in a position to continue to pursue your nefarious activities.

I, therefore, consider it necessary to invoke the law of
preventive detention and detain you under the PIINDPS

, Act, 1988 to prevent you from indulging in such prejudicial
activities in future.~·
B

Thus the material placed before the detaining authority and the
facts mentioned in the grounds of detention clearly go to show that the
detaining authority was fully aware that the bail application filed by
the detenu had been rejected by the Additional Chief Metropolitan
Magistrate 8th Court, Bombay. The detaining authority was also c
conscious of the fact that the two other detenus who were arrested and
detained in the same raid had already been released ·on bail. The
'..- antecedents of the detenu which were clear from his own statement
went to show that he was initiated in drug trafficking in 1984 and
employed as a delivery boy on Rs.30 per day -vithin a short span of D
four years the detenu himself started buying and selling Narcotic
Drugs and amassed huge movable and immovable properties in
Bombay. In the present raid itself heroin and Mandrax tablets worth
Rs.1,13,42000 were seized from the ownership and possession of the
detenu. Not only that the detenu was using three vehicles for transpo-
- ration of these Narcotic drugs. The detaining authority after taking E
into consideration the above materials placed before him, arrived to
the conclusion that the detenu being in judicial custody may under the
normal law of the land be granted bail and be in a position to continue
to pursue his nefarious activities. The detaining authority in these
circumstances considered it necessary to invoke the law of preventive
detention under the Act to prevent the detenu from indulging in his F
prejudicial activities in future. In these circumstances it cannot be said
~ that the order of detention was illegal on the ground that it ~as passed
while the detenu was already in custody

It was next contended on behalf of the petitioner that the deten-
tion orders of Rai Chand Chandmal Shah and Jai Jal Keshavlal Vora G
had already been struck down by the High Court on the ground that
the medical report in respect of the injury sustained by Rai Chand
Shah was placed in a truncated form before the detaining authority. It
was thus argued that the detention order of the present detenu also
suffers from the same vice and as such his order of detention should
also be set aside. H
278 SUPREME COURT REPORTS \1990] 3 S.C.R.

A We see no force in this· contention. We have perused the orders
of the High Court quashing the detention orders of Rai Chand Shah~_
and Jai Lal Vora. A perusal of the orders of the High Court shows that ·
the basis for the detention orders of Rai Chand Shah and Jai Lal Vora
were their confessional statements. It was alleged before the High
Court that Rai Chand Shah was given a severe beating on account of
B which he sustained serious injuries and as such his alleged confessional
statement should not have been made a ground of detention. The High
Court in this regard observed that the confessional statement of Rai
Chand Shah being product of threats and injuries sustained by him and "11111111
his medical report having been placed in truncated form before the 1111
detaining authority, the certificate showing injuries in detail not
having been placed before the detaining authority by the sponsoring
C authority, the detention became invalid. Now so far as Jai Lal Keshav
Lal Vora is ,concerned the High Court took the view that the state-
ments of Rai Chand Shah formed integral and vital part of the grounds ~
of detention of Jai Lal Vora and if such important and vital part of the
material is obliterated and excluded it is not possible to say that the
D remaining material is ample and more than sufficient to justify the
detention of Jai Lal K. Vora. The detention order of Jai Lal K. Vora
was also declared illegal. Now so far as the case of the present detenu
Syed Ali Raza Shafiq Mohd. is concerned as already mentioned above
his detention is based on entirely distinct and separate materials
including his own confessional statements. The basis of the grounds of
E detention of the present detenu is not founded on the truncated form ·'r
of medical report of injuries sustained by Rai Chand Shah. At the most
it can be considered as a supplementary kind of material for the deten-
tion order of the present detenu. Thus the present detenu cannot take
advantage of any orders passed by the High Court declaring the deten-
tion orders of Rai Chand Shah and J ai Lal K. Vora as illegal.
F
It was next contended on behalf of the petitioner that though a ~
declaration was issued under Sec. 10(1) of the Act on 20th January,
1989 but the same was served on the detenu on 10.2.89 after an unexp-
lained delay of 21 days. It was vehemently contended on behalf of the
detenu that the detenu ought to have been served with the declaration
G as soon as may be after the issue of such declaration, but ordinarily not
later than 5 days and in case it was not done within five days then
reasons ought to have been recorded in writing for explaining the
delay and that also could not have been later than 15 days in any case. _,..
Learned Counsel in this regard submitted that under clause (5) of Art.
22 of the Constitution a right is guaranteed to the detenu to afford an
H earliest opportunity of making a representation against the order of
AZRA FATIMA v. U.0.I. [KASLIWAL, J.] 279

detention. It was contended that when the liberty of a citizen is taken
A
-~ away he ought to be afforded an opportunity of making representation
at the earliest and the provisions contained in Sub-Sec. (3) of Sec. 3 of
the Act should in terms also apply in the case of communicating the
declaration issued under Sec. 10(1) of the Act.

We see no force in the above contention. So far as the provision B
of Sub-Sec. (3) of Sec. 3 of the Act is concerned it clearly provides that
for the purposes of clause (5) of Art. 22 of the Constitution, the com-

•_,
munication to a person detained in persuance of a detention order of
the grounds on which the order has been made shall be made as soon
as may be after the detention, but ordinarily not later than five days,
and in exceptional circumstances and for reasons to be recorded in
writing, not later than fifteen days, from the date of detention. This c
provision thus relates to the communication of the grounds of deten-
tion. In the case before us the grounds of detentjon were admittedly
communicated on 20th December, 1988, while the detention order was
of 19.12.88. Thus there is full compliance of the above provision and
the order of detention cannot be challenged on this ground. Now so far D
as the guarantee under Clause (5) of Art. 22 of the Constitution is
concerned there can be no manner of doubt that the person detained
under any law of preventive detention ought to be communicated the
grounds on which the order has' been made so as to afford him the

-- earliest opportunity of making a representation against the order. The
detenu was served with the grounds of detention on 20th December,
1988 and the detenu had full and ample opportunity to make a
representation against the detention order. Sub-Sec. (1) of Sec. 10 of
E

the Act reads as under:

"Notwithstanding anything contained in this Act, any
person (including a foreigner) in respect of whom an order F
' of detention is made under this Act at any time before the
~
31st day of July, 1990, may be detained without obtaining,
in accordance with the provisions of sulH:lause (a) of
clause (4) of Art. 22 of the Constitution, the opinion of an
Advisory Board for a period longer than three months but
not exceeding six months from the date of his detention, G
where the order of detention has been made against such
person with a view to preventing him from engaging in
--.;., illicit traffic in narcotic drugs and psychotropic substances,
and the Central Government or any officer of the Central
Government, not below the rank of an Additional Sec-
retary to that Government, specially empowered for the H
280 SUPREME COURT REPORTS (1990] 3 S.C.R.

purposes of this section by that Government, specially
A
empowered for the purposes of this section by that Govern-
ment, is satisfied that such person engages or is likely to
engage in illicit traffic in narcotic drugs and psychotropic
substances into, out of, through or within any area highly
vulnerable to such illicit traffic and makes a declaration to
B that effect within five weeks of the detention of such
person."

In the counter affidavit filed before this Court it has been stated 1111
in para (L) as under: ~

"Regarding the declaration, it may be stated that the same
c . was despatched by the Ministry of Finance on 20.1.1989 to
the Home Secretary, Government of Maharashtra,
Bombay, Maharashtra Government forwarded it to NCB,
Bombay which was received in the NCS office on 1.2.89
from the State Government. It was then sent for transla-
D tion, 4th and 5th February, being holidays (being Saturday
and Sunday) the declaration was despatched on 6.2.89. It
was received by the Jail authorities on 10.2.1989 and served
on the detenu same day."

Thus the declaration had been made in this case on 20.1.89 by the
E Ministry of Finance within the statutory period of five weeks of the
detention and the period taken in serving the same on the detenu on
10.2.89 has been sufficiently explained. The detenu was lodged in
Central Prison Bombay and the Advisory Board had fixed a date on
23.2.89 and as such the detenu had ample opportunity to challenge the
declaration. The High Court has also gone in detail in dealing with this
F aspect of the matter, and we agree with the finding recorded by the
High Court. The principle of five days and fifteen days as provided in
Sub-Section (3) of Section 3 relating to communication of grounds of
detention cannot be applied in respect of declaration issued under Sec.
10( 1) of the Act. In the facts and circumstances of this case we are fully
satisfied that the detenu has not been denied any opportunity of
G making any effective representation against the declaration· issued
under Sec. 10( 1) of the Act.

The last submission made on behalf of the detenu is that the
detenu had submitted a representation on 31.1.89 jointly addressed to
the Government of Maharashtra, the Government of India and the
H Advisory Board. The State ·Government rejected the representation
AZRA FATIMA v. U.0.1. [KASLIWAL, J.) 281

by its reply dated :il.2.89 and the Central Government by its reply A
dated 3.3.89. It was thus contended that there was an inordinate and
unexplained delay in considering the said representations and this is
violative of the right of the detenu conferred under Clause (5) of Art.
22 of the Constitution. The point should not detain us any longer as we
fully agree with the finding of the High Court, recorded in this regard.
The High Court has given adequate and detailed reasons in holding B
that the delay has been explained by the counter affidavit filed by the
respondents. Thus we find no force in this ground of the detenu that
his representations were disposed of after an inordinate and unexp-
lained delay.

As a result of the above discussion, we find no force in this C
petition and it is accordingly dismissed.
- ',.- R.S.S. Petition dismissed.