Narendra Kumar Rai vs State of U.P. and Others

By the Court

Narendra Kumar Rai, the Petitioner, by this petition has challenged his detention under provisions of 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as COFE POSA, in pursuance of the order dated 18th December 1990 issued by the State Government against him. Briefly stated, the grounds of detention served on the Petitioner allege that one Abani Kumar Chaudhary and his associate Shanti Swarup were searched at Indira Gandhi International Air Port on 12-8-1990 while they were going to take a flight No. KLM 836 from New Delhi to London. On their search, 975 grams of herein was recovered from the bottom of their hand-bags. On their statements being recorded by the officers of Narcotic Control Bureau, Abani Kumar Chaudhary revealed that his real name was Pratipal Singh, son of Awtar Singh, resident of 28/36, Benia Bagh, Varanasi. Both the above mentioned persons further revealed that the recovered heroin was given to him by Virendra Rai from his residence. Thereafter, the ground went on to say that Birdopur house of Virendra Rai was raided on 13th August, 1990 where he resided alongwith his brother Narendra Kumar Rai, the Petitioner, and Swaran Kumar as a member of the joint family. When the room of the Petitioner was broken open, under the matters of the double bed in the said room, seven gold biscuits of foreign origin were recovered from a polythene bag. The recovered biscuits weight 855.250 grams, valued at Rs. 2,92,495.50 P. No valid document for possession of the above-mentioned gold could be produced. On interrogation, the Petitioner informed the officials of the raiding party on 13-8-1990 that the Petitioner and his brother had been indulging in the manufacture and trade of heroin since 1983-84, from which business they were having good income. The Petitioner''s brother, Virendra Rai, started the business of manufacturing heroin and from the earning and sale of heroin enough money was earned with the result that a flat in Bombay was purchased by the Petitioner''s brother, Virendra Rai, who started manufacturing heroin in Bombay itself. The Petitioner further told the officers of the Bureau that he and his brother used to assist Virendra Rai in his illegal activities. He further disclosed that from the money earned out of the said business, the Petitioner had purchased 4-5 acres of land in Varanasi. He also disclosed that once his brother was apprehended in Bombay on 19-5-1986 alongwith the instruments for manufacturing heroin. The said matter was still pending in court. The Petitioner further disclosed that after stopping the business of heroin for some time, his brother, Virendra Rai, again started the business of heroin and started selling heroin in foreign countries also with the result that during the last four or five years one house in Bombay, one in Bangalore, one in Minto - House Colony, Varanasi and some land near Kashi Vidyapeeth, Varanasi and some other properties were also purchased by them. The Petitioner further admitted that about two years prior to the said incident, he and his elder brother, Virendra Rai, manufactured heroin and from the sale of that heroin, the recovered cold biscuits had been purchased. The Petitioner further revealed that his brother, Virendra Rai, had given these biscuits to him to keep them in his custody.

While challenging the Petitioner''s detention, learned Counsel for the Petitioner, had argued that the detaining authority, that is the State Government, had taken into consideration such materials, which did not exist on the record upto-date on which the alleged satisfaction was recorded by it. It was further argued that there has been unreasonable delay in the consideration and disposal of the representation, which was made by the Petitioner. Learned Counsel for the Petitioner also argued that in view of the proviso to Section 3 of COFE-POSA incorporated in the said Act by virtue of Section 15 of the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988, (herein-after referred to as PITNDPS Act), the detention of the Petitioner under an order passed under COFE-POSA was invalid.

We have heard learned Counsel for the parties. We are not impressed with the first and second points, which have been raised by the learned Counsel for the Petitioner as has been mentioned above. However, since we find considerable force in the submission of the learned Counsel for the Petitioner on the third point, we are not considering the merits in respect of the first two points raised by the learned Counsel for the Petitioner.

Coming to the third point, it will be relevant to quote Section 15 of the PITNDPS Act, which reads as follows:

Section 15. Amendment of Act 52 of 1974 - In Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, to Sub-section (1), the following Proviso shall be added, namely:

Provided that no order of detention shall be made on any of the grounds specified in this Sub-section on which an order of detention may be made u/s 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 or u/s 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 (J. & K. Ordinance of 1988).

Learned Counsel for the Petitioner contends that if the Petitioner could be detained on the same grounds under the provisions of PITNDPS Act, then Section quoted above, by which a proviso has been added u/s 3 of the COFE-POSA, prohibits an order to be passed on any of the grounds specified u/s 3(1) of the COFE-POSA, if on the same ground an order u/s 3 of PITNDPS Act could be passed. Learned Counsel for the Petitioner has further brought out the fact, that brother of the Petitioner, Virendra Rai, has been actually detained under the provisions of PITNDPS Act on the same grounds, as has been asserted in paragraphs, 11, 12 and 13 of the writ petition. He has taken us through the order of detention passed against the Petitioner''s brother, Virendra Rai, which has been annexed as Annexure ''5'' to the petition. We have compared the grounds of detention of the Petitioner under COFE-POSA with the grounds of detention issued against his brother, Virendra Rai, under the provisions of PITNDPS Act and we find that the grounds on which the brother of the Petitioner was detained include the grounds on which the Petitioner has been detained under the provisions of COFE-POSA. Learned Counsel for the Petitioner is, therefore, justified in his submission that this is not only a case where the Petitioner could have been detained on the same grounds under PITNDPS Act but that the brother of the Petitioner has, in-fact, been detained under the provisions of PITNDPS Act on the same grounds, with the result that the bar imposed by the proviso added to Section 3 of COFE-POSA is attracted in the case of the Petitioner.

The learned Government Advocate placed reliance on paragraph 13 of the counter-affidavit filed on behalf of the State Government in this case by Sri Om Prakash Pandey, Deputy Secretary, Government of U.P. Confidential Section 5, Lucknow. The preposition in law, that if the person could be detained under PITNDPS Act on the same ground then he could not be detained on the same grounds under COFE-POSA, is not disputed in the said paragraph. However, the stand taken therein is, that object of detention of the Petitioner is different as against the object for which the brother of the Petitioner, Virendra Kumar, has been detained. The learned Government Advocate states that whereas the object of detention, u/s 3 of the COFE-POSA was to prevent the Petitioner from engaging in transporting, selling or smuggling the smuggled goods, the object of the detention of his brother, Virendra Rai, was to prevent him from engaging in the purchase, sale, possession and exporting the narcotic drugs, with the result that the two objects become clearly distinguishable. The learned Government Advocate, therefore, contends that the bar imposed by Section 15 of PITNDPS Act would not be attracted in this case.

We have considered the arguments of the learned Counsel for the Petitioner and the one raised by the learned Government Advocate. We are, however, not in agreement with the contention of the learned Government Advocate. Section 15 of PITNDPS Act specifically says that it is the ground, which is relevant to be considered for the bar to an order under COFE-POSA and not the object for detention. Under the circumstances, once we find that the grounds on which the Petitioner has been detained u/s 3(1) of COFEPOSA is the same on which brother of the Petitioner, Virendra Rai, is detained u/s 3(1) PITNDPS Act then the proviso added to Section 3 of COFEPOSA by Section 15 of PITNDPS Act creates an embargo in the form of a prohibition for detaining a person on the same ground. The said embargo is complete and the plea that the object of detention is different under the two Acts and hence the embargo shall not apply cannot be accepted, as has been contended on behalf of the State in this case.

In the result, we have no doubt in our mind that on the grounds formulated against the Petitioner for his detention under the provisions of COFEPOSA, the Petitioner could be detained under the provisions of PITNDPS Act and hence in view of the proviso added to Section 3 of COFEPOSA such an order could not be passed by the Government. That being the position, the continued detention of the Petitioner in pursuance of the order dated 18-12-1990 passed u/s 3(1) of the COFEPOSA is rendered invalid.

The writ petition is, accordingly, allowed. The Petitioner shall be set at liberty forthwith unless required to be, detained any other case.