http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (crl.) 763  of  1998

PETITIONER: RAJAN WORLIKAR

       Vs.

RESPONDENT: STATE OF KARNATAKA AND OTHERS

DATE OF JUDGMENT:       04/05/2001

BENCH: M.B. Shah & S.N. Variava

JUDGMENT:

WITHCriminal Appeal Nos. 764, 765, 766, 767, 768, and 769 of 1998

J U D G M E N T

Shah, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   These  appeals are filed against the judgment and  order dated  28th  October  1997  passed  by  the  High  Court  of Karnataka at Bangalore in Writ Petition Nos.42 to 48 of 1997 (HC).   By  the impugned judgment and order, the High  Court rejected  the  contention raised by the appellants that  the order  of detention under the Prevention of Illicit  Traffic in  Narcotic  Drugs  &  Psychotropic  Substances  Act,  1988 (hereinafter  referred to as ‘the PITNDPS Act) was  illegal and void.

   For the purpose of deciding these appeals we would refer to few facts pertaining to Criminal Appeal No.  763 of 1998. The  order  of detention was passed on 15th April, 1997  and has  already expired on 23rd April, 1998.  It has also  been pointed  out that trial against the appellant is pending for the  offences punishable under the NDPS Act.  In the grounds of  detention  it is alleged that detenues  had  established factory  where they were manufacturing Mandrax tablets which are psychotropic substances prohibited under the NDPS Act at the  premises  situated at Belgaum, State of  Karnataka.   A search  was  conducted in the aforesaid premises on 7th  and 8th  November,  1996.  During the search it was  found  that premises  had  been converted into a factory  where  Mandrax Tablets  were being manufactured by installing a  tabletting machine,  an  oven  and  granulator  etc.   Appellant  Rajan Worlikar was arrested on 8th November, 1996.  He applied for releasing  him  on  bail and was released on  bail  on  25th February,  1997.  The order releasing him on bail was stayed by  the  High Court.  Finally that revision application  was allowed and the order releasing him on bail was set aside by order  dated  17th  April, 1998.  During that time  on  15th April,  1997, as stated above, order of detention was passed against him.

   At  the  time of hearing of this appeal, learned  senior

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

counsel  Shri  Sushil  Kumar on behalf of the  appellant  in Criminal Appeal No.  763 of 1998 submitted that the order of detention  is  void  because  of  non-communication  to  the detenue  that he has a right of making representation to the State  Government.   For  this purpose he  relied  upon  the decision  rendered by a Constitution Bench of this Court  in Kamlesh  Kumar Ishwar Das Patel v.  Union of India [(1995) 4 SCC  51].   He  precisely relied upon Paragraph  38  of  the Judgment which reads thus:

   38.   Having regard to the provisions of Article  22(5) of  the Constitution and the provisions of the COFESPOSA Act and the PITNDPS Act the question posed is thus answered:

   Where  the detention order has been made under Section 3 of  the  COFEPOSA  Act  and the PITNDPS Act  by  an  officer specially  empowered for that purpose either by the  Central Government or the State Government the person detained has a right  to make a representation to the said officer and  the said  officer is obliged to consider the said representation and  the  failure on his part to do so results in denial  of the  right  conferred  on  the person  detained  to  make  a representation  against the order of detention.  This  right of  the  detenu  is  in addition to his right  to  make  the representation  to  the  State Government  and  the  Central Government  where  the detention order has been made  by  an officer  specially  authorised by a State Government and  to the  Central  Government where the detention order has  been made  by  an  officer  specially empowered  by  the  Central Government,  and  to  have the same duly  considered.   This right  to make a representation necessarily implies that the person  detained  must  be informed of his right to  make  a representation  to the authority that has made the order  of detention  at the time when he is served with the grounds of detention  so as to enable him to make such a representation and  the failure to do so results in denial of the right  of the person detained to make a representation.

   In  support  of  his  contention,  he  has  referred  to paragraphs  30 and 31 of the grounds of detention which  are as under:

   30.   You  have  a  right to  make  any  representation against  your detention to the detaining authority,  Central Government  and  the PITNDPS Advisory Board constituted  for this purpose.

   31.   If  you desire to make any representation  to  the detaining  authority  you  may do so and address it  to  the undersigned  and forward the same through the Superintendent of the Prison, where you are detained.

   It  is his submission that these grounds nowhere mention that  detenue  has right of making a representation  to  the State Government and as the State Government is empowered to revoke  the order of detention under Section 12 of the  Act, non-communicating  to  the  detenue  that   he  can  make  a representation   to  the  State   Government  vitiates   the detention.

   As  against this, learned counsel appearing on behalf of the  respondents  submitted  that   the  impugned  order  of detention is made by the State Government and in the grounds quoted  above, it is specifically mentioned that detenue can make  representation against the said order to the detaining

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

authority.   It is, therefore, submitted that in the present case,  the detaining authority is the State Government.  For this purpose, reliance is place on the order of detention as well  as  the grounds of detention.  It is also pointed  out that  the appellants understood very clearly that the  order of  detention was passed by the State Government and to that effect, there is averment made by them in paragraph 1 of the writ  petitions filed before the High Court.  Therefore,  it was  submitted that apart from the fact that appellants have not filed any representation to any authority, they have not raised  this  contention  before  the  High  Court.   It  is contended  that  as  the  appellants   had  not  raised  the contention  earlier which is sought to be raised before this Court  at  the  time of hearing of this appeal, it  was  not possible  for  the State Government to place  the  necessary facts  on record.  However, in view of Article 166(2) of the Constitution,  order  authenticated in the name of  Governor cannot be called in question that it is an order made by the Governor.

   For  deciding this controversy, we would first refer  to the  order  of  detention  which   begins  with  the   words Government  of Karnataka, Karnataka Government Secretariat, Vidhana  Sabha Bangalore.  Further at the end of the order, it  is  stated BY ORDER AND IN THE NAME OF THE GOVERNOR  OF KARNATAKA.   It is signed by the Additional Chief Secretary and  Principal  Secretary to Government, Home and  Transport Department.   Similar  is  the position with regard  to  the grounds of detention.  Further, in para 28 of the grounds of detention, it has been stated as under:-

   28.  From the above facts and materials, the Government of Karnataka is satisfied that you have knowingly aided Sri. Taj  Mohd.   Khan in illicit traffic in narcotic  drugs  and psychotropic  substances  as is evident from your  statement and  material  available on record.  Considering  your  role even though prosecution proceedings under the Narcotic Drugs and  Psychotropic  Substances Act, 1985 have been  initiated against  you  in the matter, the Government of Karnataka  is satisfied  that  there is a compelling necessity in view  of the  possibility of your being released on bail under normal law and the possibility of your indulging in illicit traffic in  narcotic drugs and psychotropic substances to detain you under  the  provisions of Prevention of Illicit  Traffic  in Narcotic  Drugs  and Psychotropic Substances  Act  (PITNDPS) 1988,  with a view to prevent you from engaging yourself  in such prejudicial activities in future.

                                 (Emphasis added)

   From  the  aforesaid paragraph as well as the  order  of detention  and the grounds of detention, it is apparent that the  order  of  detention is made by the  State  Government. However,  it has been pointed out by the learned counsel for the  appellants  that  in  the main part  of  the  order  of detention,   the  words  used  are   to  the   effect   that IAdditional  Chief  Secretary and Principal  Secretary  to Government,   Home   and   Transport  Department   specially empowered  under  Section 3(1) of the Prevention of  Illicit Traffic  in Narcotic Drugs and Psychotropic Substances  Act, 1988  am satisfied.  Now therefore I direct that the  said Shri  Rajan Worlikar be detained It is also submitted that in  the operative part of the order of detention, it is  not mentioned that the State Government was satisfied in passing the  said  order.   Therefore,  it  is  contended  that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

detaining  authority  is the specially  empowered  officer under  section  3(1)  of  the  PITNDPS  and  not  the  State Government.

   In  our  view,  it  would be  difficult  to  accept  the contention  of  the  learned  counsel  for  the  appellants. Undoubtedly the order of detention shows that the Additional Chief  Secretary and Principal Secretary to Government, Home &  Transport Department is specially empowered under Section 3(1)  of the Prevention of Illicit Traffic in Narcotic Drugs &  Psychotropic  Substances  Act, 1988.   However,  that  by itself  does  not mean that the order of detention has  been passed  by  him  in his capacity as  a  specially  empowered officer.  If specially empowered officer has exercised his power  conferred upon him under section 3(1) of the  PITNDPS Act,  he  would not have stated that it was by order and  in the  name of the Governor.  The beginning of the order  also would  not be Government of Karnataka, but it would be  in his  name.   Further, the grounds of detention also make  it clear,  particularly  para 28, that the order was passed  by the  Government of Karnataka.  Therefore, it cannot be  said that  the  appellants were not communicated that  they  were having   right  of  making   representation  to  the   State Government.  The grounds specifically provide that they have right to make representation to the detaining authority, the Central  Government and PIT NDPS Officers Board.  Ground No. 31  further clarifies that if any representation is made  to the  detaining  authority,  then it be  addressed  to  the undersigned,  namely,  Additional  Chief Secretary  and  the Principal  Secretary to the Government.  This also makes it clear  that  the detaining authority is different  from  the Additional   Chief  Secretary.    Further,  the   appellants understood  that  the order of detention was passed  by  the State Government and in paragraph 1 of the writ petition, it has  been  stated  that  the   first  respondent  (State  of Karnataka)  exercising its powers under section 3(1) of  the Act  has  detained the appellants.  In view of this  factual position,  in our view, it is not necessary to deal with the contention  raised by the learned counsel for the respondent that  under  Article 166(2) of the Constitution,  the  order made  in  the  name of the Governor shall not be  called  in question  on the ground that it is not an order made by  the Governor.

   The  learned  counsel for the appellants next  submitted that  there  is delay in making the order of detention  and, therefore,  the same is illegal and void.  For this purpose, he  submitted  that appellant was arrested on 8.l1.1996  and the  detention  order was passed after nearly 5 months  i.e. on  15th  April,  1997.   In our view,  this  contention  is rightly  rejected  by  the  High   Court  as  the  detaining authority  has  sufficiently explained the reasons  for  the said  delay.   The explanation given for the delay  is  also mentioned  in  para 4 (C) of the counter affidavit filed  on behalf  of the Union of India.  Considering the facts stated therein,  in  our view, the High Court has rightly  rejected the said contention.

   No other contention is raised by the learned counsel for the appellants.  In the result, these appeals are dismissed.