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Judgment
N. Arumugham, J.—The present Writ Petition is filed under Article 226 of the Constitution of India praying to quash the detention order passed by the Detaining Authority, namely, the Respondent No. 1 in F. No. 801/4/96-PJTNDPS dated 15th February, 1996 under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1988 (hereafter referred to as the NDPS Act).
At about 0310 hours on 11th August, 1995 on intelligence received by the Narcotic Control Bureau, intercepted Omarsaib Mahammad Yousouf Khan and Bibi Issimdar Naziana with her son Boodhoo Mahammad Yaseen outside the gate of departure module II, NIPT, Sahar International Airport, Bombay as all the three were found loitering near the cabin of Air India assistance in a suspicious manner. They were all taken to their office as the activities of the said people were tallying with their intelligence received already for the purpose of investigation. At, about 0445 hours on 11.8.95 in the presence of panchas, the officers of the Narcotic Control Bureau took the search of the baggage of all the three of them with full compliance of the provisions of the NDPS Act, 1985. His two pieces of baggage was identified by Omarsaib Yousouf Khan consisting of one grey/black colour soft leather suitcase, and navy blue colour suitcase. It was found that except the personal effects, nothing incriminating was recovered but from the grey/black zipper suitcases the officers found 10 kgs. of heroin and 1 kg. of hashish concealed in the false bottom of the suitcase. A small quantity of heroin as well as hashish was tested with the help of field testing kit. It has resulted in positive for heroin and hashish. This has followed three samples from the said heroin and three samples from the said hashish were drawn and the balance quantity of 9.985 kgs. of heroin and 0.928 kgs. of hashish including samples were seized under a panchanama attested by the witnesses. They also seized the said suitcase and other materials used for concealing and carrying the narcotic drugs.
The officers of the NCB then asked Omarsaib Abdul Majeed Khan to identify his baggage. He identified and opened one light blue colour and one navy blue soft suitcase but however nothing was found in criminating from the same. The lady co-passenger, Mrs. Bibi Issimdar Naziana, was also asked similarly to identify her baggages and that she showed five pieces of baggages which included the baggages of herself and her son Boodhoo Mahammad Yaseen, but nothing incriminating was found from the said baggages. In the personal search of three of them, US $ 4900 were found on Omarsaib Yousouf Khan and US $ 4300 were found on the person of Omarsaib Abdul Majeed Khan. The personal search of Bibi Issimdar Naziana was taken by one lady officer Ms. Annie Vargeese in due compliance of the provisions of the Act and the said officer recovered French Francs 13000, US $ 1526, UK Pounds 100 and Indian Rs. 26210/- from her hand bag. Personal search was made upon Boodhoo Mahammad Yaseen but nothing was found. The currencies recovered from the person of Omarsaib Yousouf Khan and Omarsaib Abdul Majeed Khan were seized while the currency recovered from the lady Mrs. Bibi Issimdar Naziana was returned back to her under a panchanama.
After the seizure of narcotic drugs, the quantum of heroin and hashish above referred all the three were interrogated and recorded their statements u/s 67 of the NDPS Act. It was stated that Omarsaib Yousuf Khan admitted his guilt and that he is a Mauritius National and that he had gone to board Air Mauritius flight No, MK 745/ 11-8-95/ETD at 0350 hours along with his brother Omarsaib Abdul Majeed Khan and when they were intercepted by the NCB officers standing outside the Airport; that they had come to India on 4.8.95 and checked into Hotel Red Rose (Room No. 405) at Dadar, Bombay and that his brother Omarsaib Abdul Majeed Khan was already staying there; that he had visited India earlier also in June, 1995 and had made arrangements to buy heroin and hashish for which he had paid a sum of US $ 45000 to one Nasir Bhai Kalu Bhai Sheikh @ Nasir (c) Salim whose telephone number is : 3743743 and that said Salim got in touch with one Mohamad Farooq Abdul Latif Khaniya @ Farooq @ Farooq Kapadia and Javed Khan Mustapha Khan @ Javed and that since the drug was not available, he went back to Mauritius informing Nasir that he would be returning back to India in the first week of August, 1995; that before coming to Bombay, he contacted Farooq from Mauritius and learnt the drug had been procured that he arrived in Bombay on 6.8.95. Nasir, Javed and Farooq delivered the heroin and hashish to him in Hotel Red Rose in presence of his brother Omarsaib Abdul Majeed Khan and he had asked Nazir to make arrangements for packing and concealing the drug in a suitcase and for that Nasir took him to one Raju Packer @ Mohamad Ali Bhojani in Dongri and got the job done; that in June, 1995 he stayed in Hotel Amigo, Dadar that he had asked his brother Omarsaib Abdul Majeed Khan to smuggle out one kg. of heroin out of India by concealing the same in a cargo consignment of garments and that his brother agreed for the same and accordingly he took the said drug by concealing it in one consignment of garments through M/s. Akbarally and Sons, 36, Sabeera Manzil, Memonwada, Bombay and the said 1 kg. heroin was wrapped in a blue colour cloth and kept at the bottom. The said consignment was booked in the name of his brother and he could identify the said Nasir, Javed and Farooq to him. He further stated that he contacted Naziana in Mauritius and enquired if she could carry some item for him from Bombay to Mauritius and she agreed for the same and he had asked her to contact him in Hotel Red Rose and that she had contacted him once but later on she avoided him that he later on decided to carry the suitcase in which drugs were concealed by himself.
After getting the information of 1 kg. of heroin booked by Omarsaib Abdul Majeed Khan to be exported through air cargo, the NCB officers searched the godown of M/s. Akbarally and Sons, Freight Forwarders, situated at 36, Sabeera Manzil, Memonwada, Bombay-3 and in the presence of panchas, the proprietor of the said firm, Mr. Juzer Akbarally Ujjainwala produced the documents pertaining to the said consignment booked by Omarsaib Abdul Majeed Khan which were covered under Airway Bill No. 098 6504 5120. He also produced the documents pertaining to the consignment of five cartons booked by Bibi Issimdar Naziana which were covered under Airway Bill No. 098 6504 5061. The officers opened and examined the cargo of Omarsaib Abdul Majeed Khan and among other articles recovered blue coloured cloth wrapped on a polythene bag in which they recovered yellowish colour powder purported to be heroin. The powder on being tested with the help of a field testing kit answered positive for heroin. Thereafter, the officers drew three samples of the recovered heroin and seized entire quantity of 750 gms of heroin under a panchanama drawn at the same place in the presence of panchas. They also seized the packing material and the relevant documents. They opened the other consignment, namely, five cartons, also similarly which were covered under AWB No. 098 6504 5061 booked by Bibi Issimdar Naziana and on examining the contents, nothing incriminating was found in it.
Thereafter the officers interrogated Omarsaib Abdul Majeed Khan regarding seizure of 1 kg. of heroin booked by him. In his statement, he corroborated the recovery of 10 kg. of heroin and 1 kg. of hashish from the baggage of his brother Omarsaib Mahammad Yousouf Khan and he also admitted that at the instance of his brother he had purchased the said 1 kg. of heroin and concealed the same in cargo consignment of readymade garments and he inter alia stated that he would have earned a profit of US $ 45000 from the sale of the said 1 kg. of heroin in Mauritius and that he purchased the said heroin on 6.8.95 from one Indian National named Nasir who was known to his brother Omarsaib Mahammad Yousouf Khan and who had visited their hotel room in Hotel Red Rose and delivered the drug; that his brother Omarsaib Mahammad Yousouf Khan took him to M/s. Akbarally and Sons, Freight Forwarders for booking the said consignment. After the revelations on the part of Omarsaib Yousouf Khan and his brother Omarsaib Abdul Majeed Khan, both of them were arrested by the officers of the Narcotic Control Bureau on 12.8.95.
Omarsaib Yousouf Khan gave his further statement on 16.8.95, 22.8.95 and 24.8.95 wherein he stated that heroin was procured by Nasir through the detenu herein and that the same was delivered by the detenu in his room at Hotel Red Rose and not by Nasir, Javed and Farooq as stated by him in his earlier statement on 11.8.95; that as regards 1 kg of hashish, it was procured through Nasir and he also identified the detenu when he was produced before him in person. He further stated that the said Bibi Issimdar Naziana was very well aware of his smuggling goods out of India to Mauritius, that he had discussed the said deal with her and had asked her to contact him on telephone in Hotel Red Rose during his stay, that she was to be remunerated by giving her 2 lacs Mauritius Rupees to sale proceeds of 1 kg. of heroin; that he chose her for this job of smuggling drugs out of India because of his knowledge regarding her frequent visits to Bombay for business purpose; that during the last visit, he stayed in Hotel Mahim Palace, Bombay and as he did not like that hotel, then he checked in at Hotel Amigo, Shivaji Park, Dadar where he stayed along with one Mauritius national Jamun Goolam Ahmed @ Tingoo @ Aman @ Saija @ Ahmed who accompanied him from Mauritius; that the hotel accommodation at Hotel Amigo was booked by one Farooq Kapadia @ Mohammad Farooq Abdul Latif Khaniya who deal in readymade garments business in India and he gave the physical appearance of Farooq Kapadia; that Javed is the friend of Farooq and he was introduced to Omarsaib Yousouf Khan by Farooq; that he met Nasir in 1993-94 during his (Nasir''s) visit to Mauritius in connection with sale of readymade garments; that at the relevant time, he had given his phone number to him. He further stated about Raju Packer that he could identify him if shown to him and he gave his full name as Raju Packer @ Mohamad AH Bhojai and he identified him on a xerox copy of photograph. Further he also informed that in the past he had been convicted for a period of 8 months for the offence of unlawful assembly but he denied of having been convicted for drug offences. He also explained about the different telephone numbers which were asked at the time of recording of statements by N. C. B.
Further information was gathered from their statements u/s 67 of the NDPS Act which would reveal that Mr. Juzer Akbarally Ujjainwala, proprietor of the said firm confirmed the recovery of one kg. of heroin from cargo consignment booked under the Airway Bill No. 098 6504 5120 to Mauritius by one Omarsaib Abdul Majeed Khan and also examination five cartons by NCB booked under the Airway Bill destined to Mauritius which was booked by one lady named Bibi Issimdar Naziana and that he inter alia stated that the carton from which drug was recovered was brought on 10.8.95 and that it was brought by two persons whom he could identify if they are produced before him and accordingly they were identified as well as Bibi Issimdar Naziana.
On the basis of the information gathered from their statements, the NCB searched the premises at Room. No. 121, Dawood Fazal Building, Plot No. 229, Nishanmpada Road, Dongri, Bombay-9 belonging to Nasir Bhai Kalubhai Shaikh @ Nasir @ Salim where the telephone No. 3743743 was installed and found some incriminating documents consisting of telephone diary under a panchanama. Further statement recorded from the said persons u/s 67 of the NDPS Act on 12.8.95 would reveal the recovery of 10 kgs. of heroin and 750 grams of heroin and 1 kg. of hashish, and that Gullu had telephoned to one Farooq from Mauritius about his arrival in India in the first week of June, 1995; that he knows Farooq and his telephone number at Bandra which is 643 8942 and Farooq''s Mahim contact number is 4462080 and that Farooq deals in drugs. He also gave physical description of the said Farooq and stated that Javed is the associate of the said Farooq and he was arrested by Narcotics Cell, Andheri Unit in a drug case and that he had come out on bail about 7-8 months back; that Farooq and Javed received Gullu on his arrival in Bombay on 5.6.95 and lodged him at Mahim Palace Guest House in Mahim; that he advised Gullu that it was not safe to stay in a small guest house and he should shift to a decent hotel and accordingly Gullu and his associate shifted to Hotel Amigo, Shivaji Park, Dadar, where his brother Omarsaib Abdul Majeed Khan joined him 7.6.95 and that he along with Farooq and Javed used to provide heroin to Gullu and Majeed during their stay; that Farooq and Javed showed Gullu and Majeed some Catalogues for purchase; that at the time Gullu had some differences with Farooq and Javed; that Gullu avoided Farooq and Javed; that Gullu and Majeed shifted to hotel Rosewood at Tardeo and subsequently Omarsaib Abdul Majeed Khan went alone to Hotel Shantidoot, Dadar; that Gullu had told him not to tell about his presence in Bombay to Farooq and Javed; that Gullu contacted detenu on phone No. 309 7826 from Hotel Amigo; that Nasir took, Gullu in a taxi to the residence of the detenu situated at 2nd floor, Merchant Building, Sankli Street, Bombay, that Gullu went upstairs with another Mauritius national who was staying with him in the same room at Hotel Amigo, Dadar by name Aman @ Saija; that later on Gullu informed Nasir that the detenu had agreed to deliver 10 kgs. of heroin and 1 kg. of hashish to Omarsaib Abdul Majeed Khan with two amounts of US $ 40000 and Rs. 10.000/-; that Nasir knew the fact because he was present at the time of delivery of the drugs by the detenu and that the contraband thus purchased and procured was handed over by the detenu. The same were given to Gullu and Gullu handed over to him black grey colour soft zipper bag for the packing work and he along with Omarsaib Abdul Majeed Khan went to Raju''s place for packing and concealment job and subsequently the bag was returned back to Nasir''s house, that Gullu asked him to keep the bag at his place. Thus, from the statements recorded by the officers of the Narcotic Control Bureau from the accused persons u/s 67 of the NDPS Act had come to know that several persons including the detenu had the direct hand in dealing with and trafficking of the heroin of 10 kgs. and 1 kg. hashish from India to Mauritius for a huge profit and for the said purpose they all hatched a conspiracy among themselves and in pursuance thereof, the detenu and others had concealed them by properly packing with the help of the other persons and purchased and for the purpose of transporting them to Mauritius and in the meanwhile at the time and date above referred, they were apprehended. Various statements on various dates were recorded from the Mauritius nationals and Indian nationals including the detenu who is Indian national and another was mentioned by nicknames and that as a result of the provisions of the Narcotic Drugs & Psychotropic Substances Act and on the basis of the information given all the other accused and detenu were summoned by the Narcotic Control Bureau on 16th August, 1995. The statement of detenu was recorded u/s 67 of the NDPS Act and he appears to have stated that his father late Lal Khan Niamat Khan expired two years ago and was involved in two heroin cases; that he stated further that he knows one Gullu and that he is known by the name Yousouf @ Gullu; that Gullu was recently on a visit to Bombay and stayed in Hotel Red Rose, Dadar, Bombay and that he identified him by his photograph, that on being asked about Issimdar Bibi Naziana, he does not know any person by this name, but on being shown the coloured photograph of the lady, the detenu stated that he knew by name as Nazia; that he had seen her in Gullu''s company and further Gullu had informed him that she was his mistress and that she was aware of Gulu''s dealing and that he knew Nasir Bhai Kalubhai Shaikh @ Nasir @ Salim, resident of Dongri and that the said Nasir is Gullu''s contact and so on. He further admitted that he had supplied 10 kgs. of heroin which was seized from Gullu''s baggage on 11.8.95; that he was introduced to Gullu by one Ahmed @ Tingoo; that he knew Tingoo as he is an old acquaintance of his father Lal Khan and Tingoo had done drug dealings of opium with his father. His further statement that on 17.8.95 by which he submitted that Gullu paid him the balance amount of US $ 33,000/-, that earlier he was paid US $ 7,000/- as an advance by Omarsaib Abdul Majeed Khan at Gullu''s instructions and out of which he procured the 10kgs. of heroin and delivered the same to Gullu in Hotel Red Rose and out of US $ 40,000/- he gave US $ 36,500/- for purchase of heroin and balance was his commission and that he had spent the entire amount.
Further statement recorded on 17.8.95 and other subsequent dates which would reveal the specific and the direct role played by the detenu.
Then the seized contraband of 10 kgs. of heroin and 1 kg. of hashish were sent to the Deputy Chief Chemist, for analysis and he had sent his report confirming the presence of heroin and hashish in the said samples. Then the Narcotic Control Bureau after fully and thoroughly investigating arrested the detenu herein and the co-accused and were produced before the Court of competent jurisdiction and that they were remanded from time to time to judicial custody. A complaint has been filed against the detenu and other co-accused persons on 2.11.95 under NDPS Special Case No. 203/95.
The detenu also filed a retraction to the statement made by him in the Court on 6.9.95. A reply to the retraction has been filed by the NCB on 20.9.95.
Thus, from the facts mentioned above and the material placed before the Narcotic Control Bureau officers, they have satisfied that the petitioner-detenu is knowingly engaged himself in illicit traffic of narcotic drugs as is evident from his statement and the statements of others. Taking the prosecution against them in order to prevent him from acting in a prejudicial manner in indulging in drug traffic and psychotropic substances, the detaining authority accordingly executed and detained the petitioner by virtue of the order above referred to which is being challenged by the writ petitioner by filing the present writ petition.
Mr. R.Y. Nalawade, Desk Officer, Home Department (Special) Government of Maharashtra, Mantralaya, Mumbai, has filed reply affidavit stating that on perusing the entire case papers and on receipt of the detention order, he has executed the same and accordingly, put the detenu under detention.
Mr. R.K. Tewari, Deputy Director General (Coord) NCB, has filed a detailed reply denying all the contentions and grounds raised on behalf of the petitioner in this Writ Petition.
The learned Counsel appearing for the petitioner has advanced his attack only on two grounds, the first being since the date of arrest of the detenu and passing of the detention order, there was a time-gap of nearly 6 1/2 months and the said delay of 6 1/2 months in passing the detention order snapped the very existence of the nexus and proximity to the detenu in preventing him in indulging in any trafficking of psychotropic substances and that such delay is very vital and would vitiate the detention order, and the second being the detaining authority had found no compelling need or necessity for detaining the detenu and that as a result of which there is a non-application of mind also. On the basis of the two grounds, the learned Counsel for the petitioner submitted that the impugned detention order has become totally vitiated.
The learned Additional Public Prosecutor appearing for and on behalf of the detaining authority had denied the said two grounds and made a reference to the statements made in para 3 of the reply affidavit filed by one Mr. R.K. Tewari of the Narcotic Control Bureau. In the said reply affidavit, it has been stated that the investigation had its own chequered course as would be evident from the number of documents referred to and relied upon in the grounds of detention and that information from Mauritius authorities was called for and that thereafter the proposal was mooted to the Central Government as well as to the Screening Committee of the Central Government and that on 22.11.1995 and thereafter the proposal was cleared and after following the due procedure, the order of detention came to be issued and that thereafter the detention order was passed and executed. It was further stated that the detenu was kept in custody when the present detention order was executed and it cannot be said that the live link had snapped in any manner whatsoever. It is submitted that the entire proposal and other papers would be placed for passing the detention order. The entire proposal for passing the detention order is not on the correct basis. It was also contended that every material placed before the Court by the sponsoring authority presumes the subjective satisfaction in the matter of issuing the detention order and only after considering all the facts and circumstance, the detention order came to be clamped only in order to prevent the prejudicial activities being indulged by the detenu and others and that therefore, the apprehension that the detenu was about to come out on bail is to be judged from the nature of activities, propensity and upon the past experience and considering these aspects of the case and that as such the attack of the petitioner during the argument cannot be sustained.
The learned Counsel for the petitioner also contended that the petitioner was admittedly in custody when the order of detention against him was passed and that there was no compelling need or necessity to pass any detention order as he had not filed any bail application before any Court and also for the reason that bail cannot be granted to a person who is alleged of committing offences under the provisions of the NDPS Act particularly in view of Section 37 of the NDPS Act.
Several authorities were relied upon by the learned Counsel for the petitioner-detenu to substantiate the two grounds formulated. On going through every material, records, papers, authorities and copies of the documents produced before us, in the light of the two grounds mentioned above and the case law laid therein, we are able to see that the petitioner herein is not the one and the only person who is an Indian national indulged in trafficking of the narcotic drugs and psychotropic substances. The detenu is in close touch and in continuous collaboration with the Mauritius nationals who are dealing from and visiting often to other countries and from their statements recorded u/s 67 of the NDPS Act, it is seen that they had a conspiracy hatched out to smuggle the procured heroin as well as hashish both coming within the definition of Narcotic Drugs & Psychotropic Substances Act, 1985 to other foreign countries and that in pursuance thereof they were acting collectively by staying at various hotels in Bombay and they were also apprehended and secured on the lawns of the International Sahar Airport at Bombay. It also appears from the records, the statements recorded from various persons, including the detenu and other accused and all the documents numbering nearly 112 appended to and filed before this Court clinches the fact that the Narcotic Control Bureau had taken enormous pain and had taken the continuous efforts in extracting truth and in nabbing several persons who are dealing along with the detenu in transporting and trafficking the psychotropic substances above referred. During the said search it has come to the light that the Narcotic Control Bureau, the Respondent herein, have to venture their effort in collecting the evidence and material not only from Bombay but also from Mauritius from which destination the detenu petitioner and the other accused have conspired together to procure the narcotic drugs and transport to other country during the said relevant period. To detect and get all correspondence as evident from the voluminous documents filed in this case by the Respondents would clearly clinch the point that the whole investigation required a considerable time to complete the investigation and sent the proposal for dealing with the petitioner and the co-accused under the NDPS Act. If it is in this context the whole matter is viewed, the so called 6 1/2 month delay in passing the detention order is no ground to stand and that as such we are totally unable to countenance the first submission.
It is well-settled law that mere delay ipso facto in passing the detention order from the date of committing the particular offence is not fatal but if such delay has been explained properly that such delay would not vitiate the detention order. To project the above proposition of law, there are plethora of authorities, case-laws made available by the Apex Court. Of course, it is true that the Respondents while filing the reply affidavit had not specifically referred to the events and the mode of investigation taken by them by date wise in all details and that there is a vague denial of the said fact but however it was specifically pleaded that to pass the detention order and collect material from within India as well as Mauritius country, filing of the documents numbering about 112 by them would clearly show that there was no time lapse nor any delay on their part in passing the detention order and if every documents date wise is considered, there was no delay at all in passing the detention order. Even if there is any delay explained it could be accepted. Mauritius is a foreign country in which a few of the accused are Mauritius nationals. They are having nexus in India also and particularly the residents of Bombay. The conspiracy hatched out and the monies have been recovered from the accused in U.S. Dollars, Francs, Mauritius Rupees and Indian currency. If this is so, various panchanamas and the statements recorded u/s 67 of the NDPS Act would clearly go to show that the detenu and the other accused had an international conspiracy which squarely come in the teeth of Section 8(c) to procure and traffic narcotic drug and psychotropic substances. The statements recorded u/s 67 of the NDPS Act or the relevant documents to be taken note of and it is seen that the petitioner had admitted that he is the person who handed over the contraband of 10 kgs. heroin and 1 kg. hashish, testing of samples prove positive for the said contraband. If from the date of arresting the 3 co-accused and the investigation continuously taken by the Respondents herein is to be perused from the date of arresting these accused and executing the detention order as per the document-wise perusal, it is made clear that there is no delay at all in passing the detention order above referred and that even if any delay of 6 1/2 months mentioned, it has been properly and duly explained by the Respondents by adducing documentary evidence herein. Though the Respondents may not have detailed in their reply affidavit but however it is a technical one. But while looking into the documents filed therein, we are constrained to say that there was no delay at all in this case in passing the detention order. So we can say that there was nothing made available to vitiate the detention order in the instant case.
Coming to the second contention advanced by the learned Counsel for the Petitioner, in the facts and circumstances of the present case we are not in a position to countenance the same for the reason that simply because the petitioner was found in the custody on the date when the detention order was executed, there was no compelling need or necessity for detention. This contention has no substance for the reason that even for the offences under the provisions of the NDPS Act, Section 37 of the said conies into operation for granting or not granting bail to accused person. There are enough circumstances for an accused under the provisions of this Act to come out on bail at any point of time. For instance, if during the investigation of the crime under the NDPS Act if any violation of the mandatory provisions of the NDPS Act has been pointed out, then the settled law is that the accused is. entitled for bail. If the accused had not applied for bail it cannot be said that he was denied bail and that at any time he may or may not come on bail. It is for the said reasons we do not find any substance in the said argument but we endorse our view in favour of the decision arrived at by the detaining authority in passing the detention order against the detenu is required to be upheld. What is more required is the propensity and potentiality of the accused in the context of the attending and other circumstances where he is indulging in prejudicial activities or not is the only criteria. If the said rule as held out by the various High Courts and our High Court as well as the Apex Court, the factual aspect would clearly demonstrate that the petitioner along with other co-accused had indulged in similar offences previously and visited Mauritius, a foreign country and Mauritius nationals and Indian nationals are co-accused who hatched out a conspiracy to procure the narcotic drugs and psychotropic substances from here and then to export to other countries and sell them on order in US Dollars to other currencies.
Following the case laws held by the Apex Court in a number of cases, a Bench of this Court consisting of Rafiq Abdul Karim Merchant Vs. Shri Rajendra Singh, Secretary to Government of Maharashtra, had the occasion to hold the following:
The general rule is that it would be vitiated if there is no explanation for the same. In this connection it would be pertinent to refer to the observations contained in paragraph 16 of the decision of the Apex Court in the case of Smt. Hemlata Kantilal Shah Vs. State of Maharashtra and another, which read thus-
Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily examined by the detaining authority.
"10A. But in a case of preventive detention under the COFEPOSA or PITNDPS even unexplained delay in the issuance of the detention order, by itself would not vitiate the same. In such cases it will only be vitiated if on account of delay the live-link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him is snapped.
For determining whether such a live link has been severed or not, the propensity and potentiality of the detenu to commit prejudicial activities would be very material. I there is no material to indicate that the detenu had propensity and potentiality to commit them, unexplained delay simpliciter in the issuance of the detention order would be fatal and the same would be vitiated because the live-link between the prejudicial activities of the detenu and the rational of clamping a detention order on him would be snapped.
On the converse if there is material to show that the propensity and potentiality of the detenu to commit prejudicial activities was there then despite the unexplained delay in the issuance of the detention order the live-link between the prejudicial activities of the detenu and the rational of clamping a detention order on him would not be lost and the detention order would not be vitiated.
If the above rationale is applied to the factual aspects of the facts of the instant case, it is possible to deduce the propensity and the potentiality of the detenu along with other co-accused for indulging in prejudicial activities of drug trafficking and marketing the same illegally and that they have been carrying on business for a considerable time along with other co-accused and that therefore with the explanation offered by the Respondents, we cannot sustain both the contentions of the learned Counsel for the petitioner and that at the same time we are in full agreement with the contentions made by and on behalf of the Respondents herein. Therefore, the impugned order is not vitiated by any of the grounds of attack.
In the result the Writ Petition fails and accordingly it is dismissed.