judgement:
ivil Appeal No. 1101 of 1981.
On appeal by Certificate from the Judgment and Order dated 8.10.80 of the Kerala High Court in O.P. No. 1026/79E. WITH Writ Petition (Civil) No. 346 of 1988.
(Under Article 32 of the Constitution of India).
M.K. Ramamurthi, G. Vishwanathan Iyer, Shiv Pujan Singh, N. Sudhakaran and K. Prasantha for the Appellants.
Anil Dev Singh, P.S. Poti, Ms. Mukta Sharma, Mrs. section Dikshit, K.R. Nambiar for the Respondents.
The Judgment of the Court was delivered by KASLIWAL, J.
As identical questions of law are involved in both the above cases, they are disposed of by one single order.
Civil Appeal No. 1101 of 1981 is directed against the Judgment of High Court of Kerala at Ernakulam dated October 8, 1980.
The High Court has granted a certificate under Article 133(1) of the Constitution of India certifying that the case involved a substantial question of law of general importance consisting the interpretation of Sub section (6) of Section 24 of the Code of Criminal Procedure, 1973.
The Writ Petition under Article 32 of the Constitution has been 322 filed by the Uttar Pradesh Public Prosecutors ' Association consisting the membership of Assistant Public Prosecutors, including Prosecuting Officers, Senior Prosecuting Officers, Deputy Director of Prosecution serving under the Government of Uttar Pradesh.
Petitioner No. 2 is the President of the Association.
In both the cases the controversy raised is that there exists a regular cadre of Prosecuting Officers and as such the State Government is bound to appoint Public Prosecutors and Additional Public Prosecutors only from among the persons constituting such cadre in view of Section 24(6) of the Code of Criminal Procedure, 1973.
In order to appreciate the controversy, it would be necessary to give the background of the law and rules relat ing to the appointment of public prosecutors.
Sections 24 and 25 of the Code of Criminal Procedure, 1973 correspond to Section 492 of the Old Code and deal with the appointment of Public Prosecutors, Additional Public Prosecutors, Special Public Prosecutors and Assistant Public Prosecutors.
Under the Old Code there could be any number of Public Prosecutors appointed by the Central Government or by the State Govern ment or by the District Magistrate or by the Sub Divisional Magistrate subject to the control of the District Magis trate.
Under Section 495 of the Old Code any Magistrate enquiring into or trying a case could permit the prosecution to be conducted by any person who may do so personally or by a pleader.
In the courts of Magistrates the prosecution was conducted generally by Police Officers or by persons re cruited from the Bard styled as Police Prosecutors or As sistant Public Prosecutors all of whom worked under the directions of the Police Department.
Moreover, no qualifica tion was laid down in the old Code for the Advocates being appointed as Public Prosecutors.
In Section 24 of the new Code for the first time such detailed provisions have been made.
In Section 24 as originally framed there were only two categories of public prosecutor (1) those appointed by the Central or State Government under this Section, and (2) those engaged by the Public Prosecutor to act under his own direction, vide Section 2(U).
Provision was also for the first time made for appointment of Public Prosecutor in the High Court for conducting any prosecution in the said court on behalf of the Central Government or the State Government by the concerned Government after consultation with the High Court.
The appointment of Public Prosecutor or Additional Public Prosecutor of the State Government in every District could be made only from the panel of names of the persons prepared by the ,District Magistrate in consultation with the Sessions Judge.
It was for the first time provided that in the case of Public Prosecutor and the Additional Public Pro 323 secutor he should be an Advocate of not less than seven years standing at the Bar and in the case of Special Public Prosecutor the standing at the Bar should not be less than 10 years.
The original Section 24 has been amended by the Criminal Procedure Code (Amendment) Act of 1978 (hereinafter referred to as the Amending Act of 1978) w.e.f.
18th December, 1978 and a new Section 24 has been substituted for the original Section 24.
It would be necessary to reproduce Section 24 as it stood in the original Code of Criminal Procedure, 1973 as well as Section 24 which stood after the Criminal Procedure Code (Amendment) Act, 1978.
Section 24 of the Code as it stood prior to the amend ment introduced by the Code of Criminal Procedure (Amend ment) Act, 1978, reads as under: "24.
Public Prosecutors (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecu tor for conducting, in such court, any prosecution, appeal or other proceeding on behalf of the Central or State Gov ernment, as the case may be.
(2) For every district the State Government shall appoint a Public Prosecutor and may also appoint one or more Addition al Public Prosecutors for the district.
(3) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons who are, in his opinion, fit to be appointed as the public prosecutor or Additional Public Prosecutor for the District.
(4) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears on the panel of names prepared by the District Magistrate under subsection (3).
(5) A person shall only be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub section
(1) or sub section (2), if he has been in practice as an advocate for not less than seven years.
324 (6) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, an advocate who has been in practice for not less than ten years, as a Special Public Prosecutor" The Section as amended by the Amendment Act, 1978 reads as under: "24.
Public Prosecutors (1) For every High Court the Cen tral Government or the State Government shall, after consul tation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases in any district, or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Addition al Public Prosecutors for the district.
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecu tor, as the case may be for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecu tors or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel or names prepared by the District Magistrate under subsection (4).
(6) Notwithstanding anything contained sub section (5), where in a State there exists a regular cadre of Prosecuting Officers, the State Government shall appoint a Public Prose cutor or an Additional Public Prosecutor only from 325 among the persons constituting such cadre: Provided that where, in the opinion of the State Government, no suitable person is available in such cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the Dis trict Magistrate under sub section
(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under subsec tion (1) or sub section (2) or sub section (3) or subsection (6), only if he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.
(9) For the purposes of sub section (7) and sub section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the com mencement of this code) service as a Public prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecu tor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate".
A perusal of the above provisions would show that the changes that have been introduced in Section 24 by the Amending Act of 1978 are the addition of the new provisions now contained in sub section (2), proviso to sub section (3), sub section (6) and sub section (9).
The main contro versy put forward hinges on the new provision now contained in sub section
(6) of Section 24.
The contention raised on behalf of the petitioners is that sub section (6) of Section 24 introduced by amendment clearly lays down that notwithstand ing anything contained in sub section (5) where in a State there exists a regular cadre of Prosecuting Officers (empha sis added), appointment to the post of Public Prosecutor or Additional Public Prosecutor shall be made by the State Government only from among the persons constituting such cadre.
So far as the State of Kerala is concerned, it has been contended 326 on behalf of the appellant that the appointment of Assistant Public Prosecutors was governed by the Statutory Rules framed under Article 309 of the Constitution.
These Rules were published on 7th September, 1962 and dealt with the posts of Legal Advisor to the vigilance division.
Additional Legal Advisor to the Vigilance division and Assistant Public Prosecutors Grade I & II.
As regards Assistant Public Prose cutors Grade I, the appointment was to be made by promotion from Assistant Public Prosecutor Grade II.
So far as the Assistant Public Prosecutor Grade II is concerned, the appointment was to be made by direct recruitment.
It was pointed out that under the above rules for appointment as Assistant Public Prosecutor Grade II a candidate was re quired to be a member of the Bar having not less than two years active practice in criminal courts.
After selection he was to be kept on probation for two years and was also required to undergo a training for a period of six months.
It was also pointed out that District was considered as unit for the appointment of Assistant Public Prosecutors Grade II and so far as Assistant Public Prosecutors Grade I are concerned they belonged to the State Cadre.
It was thus urged on behalf of the appellant that a regular cadre of Prosecuting Officers in the State of Kerala was existing and in this view of the matter the appointment of a Public Prosecutor or Additional Public Prosecutor could only be made from amongst the persons constituting such cadre as envisaged under sub section (6) of Section 24 of the Crimi nal Procedure Code after amendment.
It may be pointed out at this stage that Sh.
K.J. John, Assistant Public Prosecutor Grade I filed a writ petition in the High Court of Kerala and a Division Bench by Judgment dated 5th October, 1980 dismissed the writ petition.
The High Court considered the meaning and scope of the expres sion "regular cadre of Prosecuting Officers" occuring in sub section (6) of Section 24 of the Code.
According to the High Court sub section (9) of Section 24 provided a clue to the intention of the Parliament in using the said expres sion.
It held that from sub section (9) it would be clear that the expression "Prosecuting Officers" has been used in sub section (6) as meaning any persons holding the post of Public Prosecutor, Additional Public Prosecutor, Assistant Public Prosecutor or any other Prosecuting Officer by what ever name called.
Thus in the opinion of the High Court, sub section (6) contemplated a prerequisite condition for its applicability the existence of a regular cadre consist ing of officers holding all the aforementioned posts with a regular framework of service consisting of a hierarchy of such officers.
The provisions of sub section (6) of Section 24 can, therefore, have application in respect of States where there is a 327 regular cadre consisting of a hierarchy of Prosecuting Officers with the Assistant Public Prosecutor at the lowest rung and having at the top level Additional Prosecutors and Prosecutors.
According to the High Court admittedly no such cadre of such officers existed in the State of Kerala and as such there was no question of applying the provisions of sub section (6) of Section 24.
It may also be pointed out that the High Court also noticed the provisions of Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 which dealt with the method of appointment of Government Law Officers at District Court level and the duration of their appointment.
These Rules specifically laid down that Government Law Officers at District Court Centres, Additional District Court Centres, inclusive of Public Prosecutors and Additional Public Prosecutors were to be appointed by the Government from a panel of advocates fur nished by the District Collector who was to prepare such panel in consultation with the District and Sessions Judge.
The appointment of a person as Public Prosecutor or Addi tional Public Prosecutor shall only be for a term of three years.
The High Court considered that the posts of Public Prosecutors and Additional Public Prosecutors under the above Rules were tenure posts and as such the Assistant Public Prosecutors who were regular hands cannot be appoint ed to the tenure posts.
The High Court ultimately, held that there was no regular cadre of Prosecuting Officers in the State of Kerala comprising therein Public Prosecutors and Additional Public Prosecutors.
Learned counsel appearing on behalf of the appellant K.J. John in Civil Appeal No. 1101 of 1981 contended that under the Old Code the qualification and method of appoint ment for Public Prosecutors did not require any condition for a candidate to be an advocate.
In order to remove such unsatisfactory state of affairs the Legislature provided the qualification and the method of appointment of Public Prose cutors and Additional Public Prosecutors by making elaborate provisions in Section 24 of the Criminal Procedure Code, 1973.
Under Section 24, as it stood before the 1978 amend ment, provision was made for appointment of Public Prosecu tors and Additional Public Prosecutors from a panel of names of advocates to be submitted by the District Magistrate inconsultation with the Sessions Judge to the State Govern ment.
A provision was made for the first time that a period Of seven years of practice at the Bar was necessary for appointment of Public Prosecutors and Additional Public Prosecutors.
328 It was further contended that this scheme of appointment of Public Prosecutors and Additional public Prosecutors was again found to be unsatisfactory because the selection of persons for for appointment as Public Prosecutors from the Bar was not found to be satisfactory.
Further the Assistant Public Prosecutors with required experience and ability and who were amenable to the disciplinary jurisdiction of the Government and had no avenues of promotion, were denied promotion as Public Prosecutors.
The Legislature wanted to rectify this defect and, therefore, amended Section 24 suitably to promote Assistant Public Prosecutors as Public Prosecutors and Additional Public Prosecutors at the Dis trict level.
The amendment in Section 24 by Amending Act of 1978 was thus made with the above purpose and intention.
It was thus contended that under sub section (6) of Section 24 introduced by the amendment, it was never intended to in clude the posts of Public Prosecutors and Additional Public Prosecutors within the expression "exists regular cadre of Prosecuting Officers".
It was urged that the regular cadre of Prosecuting Officers as mentioned in sub section (6) of Section 24 is dehors the cadre of Public Prosecutors/ Addi tional Public Prosecutors otherwise sub section (6) becomes meaningless.
It was thus submitted that the High Court com mitted an error in construing the expression "regular cadre of Prosecuting Officers" to comprise a service with Assist ant Public Prosecutor at the lowest level and Public Prose cutor at the top.
If Public Prosecutors and Additional Public Prosecutors are necessary in the existing cadre as interpreted by the High Court then there was no question of granting any benefit by the Legislature by introducing sub section (6) in Section 24 by way of amendment.
It was next contended that the High Court misunderstood the scope of sub section (9).
A combined reading of sub sections
(6), (7) & (9) is necessary to understand the intention of the Legislature.
According to the learned counsel sub sec tion (6) provided for appointment of Public Prosecutors from a regular cadre of Prosecuting Officers, subsection (7) provided that a person to be eligible for appointment as Public Prosecutor must have been in ' practice as an advocate for not less than seven years and therefore sub section (9) was necessary to create the fiction that the period of service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecut ing Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.
As regards the reason given by the High Court that the post of ' Public Prosecutor and Additional Public Prosecutor were tenure post.s for three years, it was sub mitted by learned counsel for appellant 329 that the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 as notified in the Kerala Gazette No. 25 dated 20th June, 1978 was made before the coming into force of the Criminal Proce dure Code (Amendment) Act, 1978 on December 18, 1978.
It was thus contended that the above Kerala Rules making the posts of Public Prosecutors and Additional Public Prosecutors as tenure posts cannot stand in the face of Section 24 of Criminal Procedure Code after Amendment Act of 1978.
In the alternative it was also contended that even if the posts of Public Prosecutors and Additional Public Prosecutors in Kerala may be allowed to continue as tenure posts, there is no bar for appointment of Assistant Public Prosecutors on such posts.
The Assistant Public Prosecutors will be in the same position as officers on deputation and will come back to their parent posts after the period of such tenure posts is over.
It is contended that this cannot be considered as a circumstance or a ground to construe sub section (6) of Section 24 to mean that the expression "regular cadre of Prosecuting Officers" does not enable the Assistant Public Prosecutors to claim appointment as Public Prosecutor.
Learned counsel appearing on behalf of the petitioners in the Writ Petition have also made identical arguments as made in the Kerala case.
The State of U.P. in its counter affidavit has pointed out that the cadre of Prosecuting Officers working in lower district courts in criminal side is wholly different and it cannot include Public Prosecutors who work exclusively on contract basis in the Sessions Courts.
Assistant Prosecuting Officers are appointed under Section 25 of the Code of Criminal Procedure.
After 1980, the Assistant Prosecuting Officers have been appointed by the State Government through the Public Service Commission, on the basis of competitive written examination and inter view of Law Graduates.
On the other hand Public Prosecutors are appointed in terms of professional contracts under Section 24(4) and 24(5) of the Code of Criminal Procedure.
A panel of names of advocates with seven years working experi ence is prepared by the District Magistrate in consultation with the District & Sessions Judge and sent to Law Depart ment of the State Government for approval.
Public Prosecu tors are thus appointed by the Law Department of State Government, whereas Assistant Prosecuting Officers are appointed by the Home Department of the State Government as regular Government servants.
It has been further submitted in the reply that Assistant Prosecuting Officers are regular Government servants and they get monthly salary and other allowances as admissible to other regular Government serv ants.
The services of Assistant Prosecuting Officers are pensionable, while Public Prosecutors are 330 appointed purely on the basis of contract, on a fixed fees.
Assistant Public Prosecuting Officers work under the admin istrative control of Home Department and Director General (Prosecution) is Head of the Prosecution Department.
The work and performance Of Public Prosecutors is assessed by the District Magistrate at the District level and they are controlled by the Law Department of the State Government.
It has been further submitted in the reply that the Assistant Prosecuting Officers main work is to prosecutre criminal cases in the lower District Courts i.e. courts of Judicial Magistrates, Chief Judicial Magistrate, Metropolitan Magis trates, Chief Metropolitan Magistrates, Munsif Magistrates, Executive Magistrates, District Magistrates and special Courts under the Terrorist Act and the Gangster Act.
The Assistant Prosecuting Officers also help the Executive Magistrate to conduct the identification of accused in criminal cases and also report on bail applications of the accused.
Assistant Prosecuting Officers also check the records of Sessions cases before their committal to Sessions Court and they also deal with the finger print branch and Malkhana of case properties.
They are Legal Advisors of the Superintendents of Police in matters pertaining to investi gation.
The Public Prosecutor 's main work is to prosecute the criminal cases in the Sessions Courts.
The State Government in its counter affidavit has fur ther given the following chart showing the hierarchy pay scales and strength of cadre: Name of Post Pay scale Permanent Temporary.
Total No. of Posts Joint Director Rs. 1840 2400 1 1 Legal Joint Director Rs. 1840 2400 1 1 (Admn.) Dy.
Director Rs. 1250 2050 5 6 11 Sr.
Prosecuting Rs. 1250 2050 17 17 Officer (Gr.
I) Sr.
Prosecuting Rs. 850.1720 13 70 83 Officer (Gr. II) Prosecuting Rs. 770 1600 84 114 198 Officer 331 Asstt.
Prosecuting Rs. 625 1240 704 174 878 Officer As against the aforesaid cadre and pay scales the Public Prosecutors are retained on monthly fees/daily fees as the case may be.
They are paid library allowances also.
The rates in their cases have been indicated as under: Monthly Library Fees Allowance (1) Public Prosecutor/District Rs.2700 Rs.300 Govt.
Counsel (Gr.) (2) Additional Public Prosecutor Rs.2550 Rs.250 Gr.
I/Addl.
District Govt.
Counsel (Gr.) (3) Addl.
Public Prosecutor Rs. 1800 Rs.200 Gr.
II/Asstt.
Distt.
Counsel (Gr.) (4) Addl.
Public Prosecutor Rs. 50 as daily fees.
III It has been further submitted in the reply that the petitioners have several promotional avenues in their own cadre and cannot claim any post outside their cadre.
In Uttar Pradesh there is no regular cadre of Prosecuting Officers within the meaning of Section 24(6) of the Code of Criminal Procedure and as such the petitioners are not entitled to appointment as Public Prosecutors or Additional Public Prosecutors in Sessions Courts.
It has also been pointed out that at present the total strength and posts of Assistant Prosecuting Officers is 878 out of which 66 1 have been filled and the rest are vacant.
The total number of posts of Prosecuting Officers is 198 out of which 191 have been filled up and the rest are vacant.
At present the posts of Senior Prosecuting Officer Gr.
II & I are 83 and 17 respectively.
Thus there is ample opportunity of promotion open to the petitioners.
The main controversy hinges on the scope of sub section (6) of Section 24 and specially the words "regular cadre of Prosecuting Officers" existing in this provision.
Prior to coming into force of the Code of Criminal Procedure, 1973, the Prosecuting Officers were under the 332 control of Police Department.
It was not necessary at that time that the Public Prosecutor or Additional Public Prose cutor should have any experience as an advocate.
In order to remove such unsatisfactory state of affairs, the Legislature made an elaborate provision under Section 24 for the ap pointment of Public Prosecutors and Additional Public Prose cutors in the Criminal Procedure Code, 1973.
Under this provision it was laid down that practice as an advocate for not less than seven years was necessary for appointment of Public Prosecutor and Additional Public Prosecutor.
After sometime, it was considered by the Legislature that the above provision does not take into consideration the working experience of Prosecuting Officers and pleaders for eligi bility for appointment as Public Prosecutor and Additional Public Prosecutor.
The Legislature as such substituted a new Section 24 by the Criminal Procedure Code (Amendment) Act, 1978 brought into force w.e.f.
18th December, 1978.
Under sub section (9) of this new Section 24 it was provided that the period during which a person has been in practice as a pleader, or has rendered service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.
This provision thus granted benefit of the period of service to the persons mentioned in the above provision and by a deeming fiction such period of service was considered as the period in practice as an advocate.
Thus the above provision made the Prosecuting Officers such as Public Prosecutor, Additional Public Prosecutor, Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, also eligible for being included in the panel to be prepared by the Dis trict Magistrate in consultation with the Sessions Judge fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.
In this background we have to understand the scope of subsection (6) of Section 24 which gives a clear mandate to appoint a Public Prosecutor or an Additional Public Prosecu tor only from amongst the persons constituting a regular cadre of Prosecuting Officers.
According to this provision any person from the advocates or from any other source cannot be appointed as a Public Prosecutor or an Additional Public Prosecutor if there already exists a regular cadre of Prosecuting Officers in a State.
So far as the proviso to sub section (6) of Section 24 is concerned it would not apply in the normal circumstances and would only be attract ed where in the opinion of the State Government no suitable person is available in such regular cadre of Prosecuting Officers for appointment as Public Prosecutor or Addi 333 tional Public Prosecutor.
Admittedly the regular cadre of Prosecuting Officers in the State of Kerala as well as in the State of U .P. does not include Public Prosecutors or Additional Public Prosecutors.
The case of the appellants is that Assistant Public Prosecutors Gr.
I and Gr.
II together constitute a cadre of Prosecuting Officers so as to attract the applicability of sub section (6) of Section 24 of the Code.
It has been contended on their behalf that unless the Government formed the requisite opinion that no suitable person is available in the said cadre for appointment as Public Prosecutor or Additional Public Prosecutor, the appointments to the posts of Public Prosecutor, and Addi tional Public Prosecutor can be made only from amongst persons holding the posts of Assistant Public Prosecutors Gr.
I & Gr.
A combined reading of sub section (6) and sub section (9) of Section 24 gives a clue to the intention of the Legislature in determining the scope of the expression "regular cadre of Prosecuting Officers" occurring in sub section (6).
The intention of introducing sub section (6) and the deeming fiction in sub section (9) was in order to safeguard the promotional rights of Prosecuting Officers in such of the States where there is already in existence regular cadre consisting of a hierarchy of Prosecuting Officers going to the top level of Additional Public Prose cutors and Public Prosecutors.
In Sub sectiOn (9) the ex pression "Prosecuting Officers" has been used as taking in any persons holding the post of Public Prosecutor, Assistant Public Prosecutor or any other Prosecuting Officer by what ever name called.
Sub section (6) independently can grant no benefit to the Prosecuting Officers unless the clause of deeming fiction contained in sub section (9) makes them eligible for appointment1 as a Public Prosecutor or Addi tional Public Prosecutor.
Sub section (9) clearly speaks with regard to the service rendered as a Public Prosecutor or as Additional Public Prosecutor, or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called to be counted as the period as if such person had been in practice as an advocate for the purposes of subsec tion (7) & sub section (8).
Thus we are clearly of the view that the expression "regular cadre of Prosecuting Officers" contained in subsection (6) of Section 24 must comprise a regular cadre of Prosecuting Officers going up to the level of Additional Public Prosecutor and Public Prosecutor.
It may be important to note that so far as the State of Kerala is concerned under Rule (5) of the Kerala Government Law Officer (Appointment & Conditions of Service) and Conduct of Cases Rules, 1978, it has been stated that the Legal Advisor to the Vigilance Department, Additional Legal Advisor to the Vigilance Department and Assistant Public Prosecutor Gr.
I shall belong to the State Cadre 334 in the sense that for the purpose of appointment, probation, seniority, discharge of probationers and approved probation ers for want of vacancy, the State shall be the unit whereas in the case of Assistant Public Prosecutor Gr.
II, the District concerned shall be the unit for all such purposes.
Thus if we take the argument of learned counsel for the appellant to its logical conclusion, the result would be that in a State if there existed a cadre of Prosecuting Inspectors or Assistant Public Prosecutors only in that case also the State Government would be bound to appoint Public Prosecutor and Additional Public Prosecutor only from among such cadre under sub section (6) of Section 24.
It could not have been the intention of the legislature while enacting sub section (6) of Section 24 of the Code.
It was also contended on behalf of the petitioners that in case the meaning to the expression "regular cadre of Prosecuting Officers" under sub section (6) of Section 24 is given as to consist of a regular cadre of Prosecuting Officers going upto Public Prosecutor at the top, then there is no benefit to such persons by enacting sub section (6) and (9) in Section 24 of the Code.
We find no force in this contention.
The basic intention of the Legislature was to appoint Public Prosecutors and Additional Public Prosecutors from the advocates having atleast seven years practice.
Section 24 as initially contained in Section 24 of the Code did not make any Prosecuting Officer even of the cadre of Public Prosecu tor prior to 1973 as eligible for being appointed as Public Prosecutor or Additional Public Prosecutors, they were made eligible by substituting Sec.
24 by the Amending Act of 1978 by introducing a new provision under subsection (9) of Section 24.
In this background when we consider the provi sion of sub section (6) of Section 24 which makes it incum bent to appoint Public Prosecutor and Additional Public Prosecutors only from a regular cadre of Prosecuting Offi cers, it can only be applied in case of such regular cadre which may go upto the level of Public Prosecutor.
In view of these circumstances we find that the Kerala High Court is right in taking the view that the expression "regular cadre of Prosecuting Officers" comprised a service with Assistant Public Prosecutor at the lowest level and Public Prosecutors at the top.
In case a regular cadre of Prosecuting Officers did not go into Public Prosecutor at the top, the State Government cannot be considered as bound to appoint Public Prosecutor or Additional Public Prosecutor only from among the persons constituting such cadre under the.
Code of Criminal Procedure for conducting cases in the Sessions Court.
There is another insurmountable difficulty which exists in the 335 way of the appellant and the petitioners in as much as the State Government has made the posts of Public Prosecutor and Additional Public Prosecutors as tenure posts It lies within the competence of the State Government to keep such posts of Public Prosecutor and Additional Public Prosecutor as tenure posts for some period based on contract and not to make such posts as regular or permanent under any service rule.
In this view of the matter till such posts are tenure posts, to be filled on contract basis for some period, the Assistant Public Prosecutors who are members of a regular service cannot claim any right to be appointed on such posts under sub section (6) of Section 24 of the Code of Criminal Procedure.
They are also eligible to be considered with any advocate of seven years standing if willing to join such post on tenure basis by the District Magistrate in consulta tion with the Sessions Judge.
We cannot accept the conten tion of the learned counsel for the petitioners in this regard that Assistant Public Prosecutors can be appointed on such tenure posts on deputation and may return back to their parent service after completion of the period of such tenure posts.
The State of U.P. in its counter has clearly brought out the distinction in these two kinds of posts in the manner and terms of their appointment, discharge of duties, emoluments etc.
The Assistant Public Prosecutors have ave nues of promotion in their own cadre and no argument can however be advanced in interpreting the provision of sub section (6) of Section 24 on this basis.
In the result both the above cases are dismissed with no order as to costs.
R.S.S. Appeal and Petition dismissed.

summary/full:
The appellant in the civil appeal was an Assistant Public Prosecutor Grade I in the State of Kerala.
The writ petition under Article 32 of the Constitution has been filed by the Uttar Pradesh Public Prosecutors ' Association con sisting of the membership of Assistant Public Prosecuters, including Prosecuting Officers, senior Prosecuting Officers, Deputy Director of Prosecution serving under the Government of Uttar Pradesh.
In both the cases the controversy raised is that there exists a regular cadre of Prosecuting Officers and as such the State Government is bound to appoint Public Prosecutors and Additional Public Prosecutors only from among the persons constituting such cadre in view of section 24(6) of the Code of Criminal Procedure, 1973, as amended by the Criminal Procedure Code (Amendment) Act of 1978.
The appellant 's writ petition filed in the High Court of Kerala was dismissed.
The High Court was of the view that the provisions of sub section (6) of section 24 could have application in respect of States where there was a regular cadre consisting of hierarchy of Prosecuting Officers with the Assistant Public Prosecutor at he lowest rung and having at the top level Additional Public Prosecutors and Public Prosecutors.
The High Court held that there was no regular cadre of Prosecuting Officers in the State of Kerala Com prising therein Public Prosecutors and Additional Public Prosecutors.
The High Court further observed that under the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 the posts of Public Prosecutors and Additional Public Prosecutors were tenure posts and as such the Assistant Public Prosecutors who were regular hands could not be appointed to the tenure posts.
320 Before this Court it was contended on behalf of the appellant/ petitioners that Assistant Public Prosecutors Grade I and Grade II together constituted a cadre of Prose cuting Officers so as to attract the applicability of sub section (6) of section 24 of the Code.
It was urged that in case the meaning to the expression "regular cadre of Prose cuting Officers" under sub section (6) of section 24 was given as to consist of a regular cadre of Prosecuting Offi cers going upto Public Prosecutor at the top, then there was no benefit to such persons by enacting sub sections (6) and (9) in section 24, by the Amending Act of 1978.
It was further urged that there was no bar for appointment of Assistant Public Prosecutors against tenure posts as offi cers on deputation.
The State of U.P. in its counter has brought out the distinction in these two kinds of posts in the manner and terms of their appointment, discharge of duties, emoluments etc.
It was further urged that in Uttar Pradesh there was no regular cadre of Prosecuting Officers within the meaning of section 24(6) of the Code of Criminal Procedure and as such the petitioners were not entitled to appointment as Public Prosecutors or Additional Public Prosecutors.
Dismissing the appeal and the writ petition, this Court, HELD: (1) The intention of introducing sub section (6) and the deeming fiction in sub section (9) was in order to safeguard the promotional rights of Prosecuting Officers in such of the States where there was already in existence a regular cadre consisting of a hierarchy of Prosecuting Officers going to the top level of Additional Public Prose cutors and Public Prosecutors.
[334E F] (2) The Kerala High Court was right in taking the view that the expression "regular cadre of Prosecuting Officers" comprised a service with Assistant Public Prosecutor at the lowest level and Public Prosecutors at the top.
In case a regular cadre of Prosecuting Officers did not go upto Public Prosecutor at the top, the State Government could not be considered as bound to appoint Public Prosecutor or Addi tional Public Prosecutor only from among the persons consti tuting such cadre under the Code of Criminal Procedure for conducting cases in the Sessions Court.
[334G H] (3) It was within the competence of the State Government to keep such posts of Public Prosecutor and Additional Public Prosecutor as tenure posts for some period based on contract and not to make such 321 posts as regular or permanent under any service rule.
In this view of the matter, till such posts were tenure posts, to be filled on contract basis for some period, the Assist ant Public Prosecutors who were members of a regular service could not claim any right to be appointed on such posts under sub section (6) of section 24 of the Code of Criminal Procedure.
[33SA C] (4) The contention of the petitioners that Assistant Public Prosecutors can be appointed on such tenure posts on deputation and may return back to their parent service after completion of the period of such tenure posts, was not acceptable.
[335C]


judgement:
1, 3 and 10 of 1989 and 12 of 1990.
IN Writ Petition (C) No. 8209 of 1983 etc.
(Under Article 32 of the Constitution of India).
V.A. Bobde, V. Gauri Shankar, M.K. Ramamurthy, Prashant Bhushan, T. Sridharan, Ms. Shobha Dixit and M.A. Krishna murthy fox the Petitioners.
Ms. Anil Katiyar, Ms. A. Subhashini R.P. Srivastava (NP), Promod Dayal, R.B. Mehrotra and Raju Ramachandran for the Respondents.
The Order of the Court was delivered by RANGANATH MISRA, J.
On 30th of August, 1988, while disposing of two writ petitions being Nos. 8209 and 8821 of 1983, this Court came to the conclusion that the entire mining operation in the Doon Valley should come to a halt.
With a view to effectuating this conclusion all mining activity was directed to be stopped excepting in the case of a few for reasons indicated in that order.
Several applications thereafter came before this Court for permission to remove stacked material and almost for one and a half years now, many rounds of such applications have been filed before this Court which have led to inquiries being made by executive authorities, a joint inspection by the District Judge and the District Magistrate as also separate reports from the Monitoring Committee appointed by this Court.
After hearing parties in some cases the court has granted permission for removal and extended time for appropriating the mined material.
On the plea that within the time given by the Court removal was not possible, fresh extensions of extended dates have also been asked for.
At one stage, the Monitoring Committee reported that taking advantage of such extensions further mining was being illegally undertaken.
The Monitoring Committee also pointed out that where the 74 mined material was spread over it had consolidated and grass as also other vegetations have started growing.
In these circumstances, while either allowing or rejecting the appli cations for removal or extension or allowing removal under restrictions, this Court has been expressing itself clearly that the Doon Valley should be made available for afforesta tion to make good the loss that had been caused to the ecology and that work should no longer be interfered with.
A fresh set of applications have now been made for permission to remove the mined material, machinery and/or extension of time for the same.
This Court had called for a report on the basis of joint inspection by the District Judge and the District Magistrate of Dehradun and after the said report was received, the Monitoring Committee has made its report on the basis of this Court 's direction.
A group of these applications had been heard on 12th of February, 1990, but as some other applications remained to be disposed of on the basis of the report of the Monitoring Committee which was yet to be received, no orders had then been made.
The Monitoring Committee sent its report dated 6th of April, 1990, and the other group of applications which were then pending have in the meantime been heard on 26th of April, 1990.
We proceed to dispose of all the pending applications by this order.
We have considered the submissions with some amount of anxiety particularly as we are of the definite view that the Doon Valley should be left free to the planters for reaffor estation and the mine owners should be put out in every respect of the same.
Two or three aspects have, however, to be borne in mind while dealing with a case of this type.
Mining was stopped by our order all of a sudden within a month from 30th of August,/988.
Though fresh mining is stopped, mined material which had been appropriated by the mine owner by his own efforts should ordinarily be allowed to be taken by him.
There is no doubt that the mined materi al has been loosened from the original place by digging and even if it is allowed to be stacked, consolidation of such material is bound to take quite some time and within one year it is not likely to consolidate appropriately.
The mined material has a market and with the closure of the mining operation substantially in the Doon Valley, this material seems to have been fetching good price as there is demand for the same.
When mining was stopped, no compensa tion was provided and the only hope our order held out was rehabilitation.
At this stage, it is appropriate to extract a portion from the letter 75 Of the Chairman of the Monitoring Committee dated April 6, 1990, addressed to the Registrar of this Court.
The Chairman is no other than the Secretary to the Government of India in the Ministry of Environment and Forests.
He has pointed out: "The Committee would seek the indulgence of the Court to submit to the Hon 'ble Justices that the areas ravaged by these mines including the roads leading to the mine areas are in immediate need of afforestation to consolidate the soil and prevent soil erosion.
Permission granted to the miners will inevitably delay the process of afforestation and will destroy any natural vegetation that has come up along the roads and the mine areas since the last monsoon.
Shri David Paul (Lease No. 99) in fact broke several check dams in the process of lifting material taking advantage of this Court 's orders granting him permission to remove quar ried material.
The process of afforestation of these areas cannot even be started as long as various applications of these miners for removal of material are pending before this Hon 'ble Court.
It is humbly submitted that this Court must, therefore, once and for all, put an end to such applica tions, in order that the Monitoring Committee may vigorously take up the task of afforestation of these areas.
" We can quite appreciate the anxiety of the Monitoring Committee that initial permission and extension of time for removal has disturbed afforestation.
The Monitoring Commit tee must, however, appreciate that the enthusiasm which it is prepared to exhibit has to be sobered down in the initial period by such judicial directions as are called for taking the cause of equity and justice into consideration.
Even in such of the cases where permission or extension for removal would be granted now, we are of the view that the mine owners should not be permitted to operate and the District Magistrate should set up a machinery under his control and subject to the supervision of the Monitoring Committee to enable removal.
We do not propose to allow the process of removal to continue beyond 15th of June, 1990.
The process of afforestation for the year would begin only by that time awaiting the onset of the monsoons.
The ex lessees in whose case original or extended orders permitting removal would now be made have, therefore, to contact the District Magistrate within one week of this order and the District Magistrate would work out removal on appropriate payment from the respective areas of the ex lessees of 76 the extracted material as mentioned in this Court 's order of today on or before 15th of June, 1990.
We make it clear that no application either for original permission or for exten sion shall hereafter be entertained by this Court and the Registry is directed by this order not to entertain such petitions.
It may be that such direction may affect some one who has not been vigilant or has on account of some other difficulty or hardship been not able to remove the stacked material within his leasehold area in the Doon Valley; but taking the broad interests of the entire Valley into account such individual losses or inconveniences have to be sacri ficed and/or overlooked and equities can no longer be al lowed to be invoked.
B INTERLOCUTORY APPLICATIONS IN DISPOSED OF WRIT PETTION NO.
8209 OF 1983 1.
A. NO.
I OF 1989 This application is by the former lessee of lease No. 16 Ved Pal Singh Chaudhary.
The mine closed down on 30th of September, 1988 in terms of this Court 's direction dated 30.8.1988.
The first report on the record is dated 18th of February, 1989, jointly given by the Additional District Magistrate, Dehradun, D.P. Sharma, Geologist of Dehradun and the Forest Range Officer, Mussoorie.
This report indicated that limestone extracted was found lying scattered in dif ferent marble pits and also heaps of different shapes.
The estimated quantity in the heaps appeared to be 11,500 metric tons.
This Court permitted removal of the mined material and the report of the Monitoring Committee shows that between March and May, 1989, with extensions obtained from the Court, 11,539 metric tons have already been removed.
The joint inspection report of the District Judge and the District Magistrate has indicated that there was no fresh mining in the area after 30th of August, 1988, and it appeared that the scattered material had been collected and removed while the stack has remained untouched.
The present petition is for removal of the stack which is claimed to be more than 11,000 metric tons.
The Monitoring Committee on the basis of the fact that 11,539 metric tons had been removed has assumed that there must have been fresh mining to justify the presence of the stack.
It has also indicated in the report that there is no danger whatsoever of any scree or stacked 77 material rolling down and affecting and choking the streams.
According to the Committee, giving fresh opportunity for removal would encourage illicit mining and several mine owners are likely to carry on that clandestinely.
Keeping the two reports in view, we are inclined to hold that there has been no fresh mining and the stack now found is the old one; it would not be appropriate to assume that the stack has consolidated nor is it possible that the vegetation on such a stack would grow within a year.
For the reasons we have already indicated earlier we think it appropriate that ex mine owner of lease No. 16 should be permitted to have the existing stacked material of 11,500 metric tons removed from the leasehold area but the same shall be through the agency set up by the district Magistrate on terms of payment and the removal shall be completed on or before the 15th June, 1990.
It is made clear that the removal shall be supervised by the Monitoring Committee.
1. A. Nos. 3 and 10 of 1989 and 12 of 1990 These are applications made on behalf of Punjab Lime & Limestone Company for extension of time for lifting the mined material lying in the first two lease areas held by the aforesaid lessee and for original permission for the lease No. 96.
Under the final order of this Court dated 30th August, 1988, in Paragraph 51 of the deci sion three mines including lease No. 96 valid up to 12.12.
1989 were permitted to work.
Therefore, mining activity in respect of lease No. 96 must have stopped after 12th Decem ber, 1989.
The joint inspection report of the District Judge and the District Magistrate indicated that 2,269 metric tons of material were lying at the face of the mine in lease No. 14/ii while in regard to lease No. 14/i there was no materi al found and the scattered scree was reported to have total ly stabilised.
The Monitoring Committee has opposed removal from lease No. 14/ii by saying that permission to remove had been given and utilised.
We are of the view that the peti tion in regards to lease No. 14/i should be rejected in view of the concurrent reports of the joint inspection and the Monitoring Committee that the scree has already consolidat ed.
So far as 2,269 metric tons from lease No. 14/i are concerned there is no particular reason to take a different view and we direct that the same shall be removed through the machinery set up by the District Magistrate upon payment of the cost by the ex mineowner.
This removal shall also to be made prior to 15th June, 1990.
Lease No. 96 closed down operations on 12th December, 1989.
5000 metric tons of limestone are claimed to have been scattered over 78 the area and reliance is placed upon the rule permitting six months ' time from the date of closing for removal of such material. 'The Monitoring Committee has reported that there was no scree lying on the leased area.
It found that there is some scattered material on the surface of the mine which cannot conveniently be stacked up.
Since this is the first application of the ex lessee after the mining has been closed, we would have directed the Monitoring Committee to make a fresh inspection in the presence of the ex mine owner but in view of the clear report that there was no stacked material found by the Monitoring Committee and the further fact stated in the report that the scree has already consol idated even during the currency of the mining lease, we do not think it will be appropriate at this stage to permit any removal.
The petition is accordingly dismissed.
1. A. Nos. 5 and 6 of 1989 This petition is by the legal representatives of C.G. Gujral who as lessee of lease No. 76.
The first petition is for substitution of his legal representatives.
It is allowed.
So far as the second one is concerned, the legal representa tives of Shri Gujral, ex mine owner requests for permission for removal of the extracted mineral as also some machine parts from the leasehold area.
At the instance of Shri Gujral this Court on 30.1.89 had made the following order: "Heard learned counsel in C.M.P. for permission to remove the mining material already lying at the quarry site.
Subject to the verification by the Collector either person ally or by a responsible officer that the allegation is correct, removal may be permitted.
The entire stock either near the quarry or stocked in the stacking site should be removed within four weeks from the day permission is granted . . ".
It is alleged that soon after on 18th September, 1989, C.G. Gujral, original mine lessee died and his legal repre sentatives had instituted a suit.
The suit has now been dismissed by a separate order of this Court and interim relief granted has also been vacated.
This petition filed in July, 1989, seeks permission for removal of the stacked material and for permission to remove the machinery which comprises of compressors and tools said to be lying at the mine site.
The joint inspection report indicates that the mine site was not accessible.
16 Kms.
pathway had been damaged and even walking was not possible.
If we permit the roadway to be repaired, there is apprehension of 79 damage to the land in the locality.
If the work is left to the legal representatives of the ex mine owner they are likely to collect material for the purpose of repair which would definitely affect the ecology.
Yet there are valuable machines apart from the mined material to be collected.
We leave it to the Collector and the Monitoring Committee to find out if by some convenient path or any other process by which the machinery and the mined material can be moved out.
The legal representatives of the ex mine owner may now contact the Collector and the Monitoring Committee to find out the modality of removal and in case some convenient way is found out the stacked material and the machinery may be removed with the help of the agency of the Collector subject to the payment of the cost on or before 15th June, 1990.
C.M.P. No. 18702 of 1989 This application is by the ex lessee of lease No. 31.
The joint inspection report indicates that the mining was stopped on 12th March, 1985 and there has been no fresh quarrying.
The report indicates: "Under the mining faces in the slopes and in the river beds scree and fine material were seen lying and scattered.
Natu ral vegetation is overgrown.
Plants like . . were grow ing.
At some spots pine plants and furns were also found growing indicating that there is existence of humus and the already quarried material has compacted and settled binding the soil.
" In this view of the matter it becomes difficult to entertain this petition at this stage; the petition is accordingly dismissed.
1. A. No. 4 of 1989 This application is by the ex lessee of mine No. 17 asking for permission for removal of already extracted mineral lying at the mine site.
In the joint inspection report it has been indicated that this Court had granted some time for removal.
The ex lessee had also obtained an order from the Addl.
District Judge of Dehradun.
The report indicated that there was no sign of fresh mining.
We have taken all aspects into account and we are of the view that this application has to be rejected.
80 C.M.P. No. 18703 of 1989 This application is on behalf of the ex lessee of lease No. 8 for extension of time for lifting of mined mineral.
The joint inspection report indicates that mining in this area was stopped as early as 12th March, 1985, and "Natural vegetation has overgrown in and around the mining faces.
Considerable quarried material was lying scattered in the slopes, the quantity of which could not be ascertained or measured.
The Monitoring Committee in its report dated 10.8.89 assessed that approximately 7,000 metric tons of the mining material was lying scattered in the mining area.
" We have no intention to permit any meddling to unsettle the settled situation.
As the mining has stopped for more than five years and the report is that there has been overgrowth of natural vegetation we do not intend to permit extension of time as prayed for.
The petition is accordingly dis missed.
C.M.P. 11756 of 1988 The two writ petition Nos. 8209 and 8821 of 1983 clearly relate to the Doon Valley and mining activity falling within the district of Tehri Garhwal was not be the subject matter of those two writ petitions.
The CMP filed by the State of Uttar Pradesh is dismissed leaving it open to the State to agitate its contentions in regard to mining activity in Tehri Garhwal separately.
W.P. No. 151 of 1990 This is an application under article 32 of the Constitution asking for grant of leases in respect of five mines falling within the 'A ' category of the Bhargava Committee Report as also Category (1) of the Working Group Report to the Calcium Carbonate Manufacturers Association for carrying out limited mining activity to meet the essential and captive need of the Calcium Carbonate Industry.
When the main writ petitions were pending, CMP 30707/87 had been filed for the self same relief and it wanted to be impleaded in those two writ petitions.
The application was rejected on 30th of August, 1988, by saying: "From time to time, Civil Miscellaneous Petitions had been moved and orders were made.
We do not see any justification to make any further order in such cases.
All CMPs are disposed of.
" Thereafter, the petitioner made another application for the same relief 81 but the Registry did not entertain it in view of the final order of 30th August, 1988.
The present writ petition, in these circumstances, is not maintainable.
That apart, this Court had come to the conclusion on 30th of August, 1988, that mining activity in the Doon Valley area must ultimately stop.
The Court has taken into consideration the need for availability of minimum supply of the mineral in question and to make available such supply, controlled and regulated mining activity has been permitted.
Mining leases are not granted by this Court and in view of the conclusion already reached that no fresh mining activity should be carried on, we see no justification for entertaining this writ petition.
Contempt Petition No. 25 of 1989 There is already an order that the proceeding for con tempt is misconceived.
We do not find any justification to give any further time for lifting or removal.
The contempt petition is accordingly dismissed.
1. A. No. 9 of 1989 This application is by the Monitoring Committee appoint ed by this Court and the prayer is to recall the order of 19th October, 1989, and to direct the State of Uttar Pradesh to sell the material and utilise the proceeds for the pur poses of reafforestation and conservation.
In view of the steps we have taken in the connected matters, no particular directions are necessary.
C The only other question that is left for consideration is the recommendation of the Monitoring Committee that the payment of Rs.5 per metric ton of the extracted material fixed by this Court in 1988 should be raised to Rs.20 per metric ton.
We have heard counsel for the parties.
We have also perused the report and the papers produced on behalf of the lessees who are still running.
We are inclined, on the materials placed, to take the view that the rate should be enhanced to Rs. 10 from Rs.5 with effect from 1st June, 1990.
Since this will not have any retrospective effect the liability for such payment would be only in respect of the lessees who are running by permission of the Court given in the main judgment of August 30, 1988.
It has been contended by some of the lessees before us that the money which has been collected on the basis of Rs.5 per metric ton has 82 not yet been utilised for plantation.
We hope and trust that there is no basis for the criticism but would like to advise the Monitoring Committee to activise its steps in the proper direction.
A detailed report on the afforestation scheme may now be placed by the Monitoring Committee by 30th June, 1990, for the consideration of the Court on the 23rd July, 1990.
The rehabilitation scheme which has already been fur nished by the appropriate Committee should now be placed before the Court for orders also on 23rd July, 1990 R.N.J. Petition dis posed of.

dataset_name: IN-Abs

summary/full:
Disposing of on 30.8.1988 Writ Petitions Nos. 8209 and 8821 of 1983 this Court had come to the conclusion that the entire mining operation in the Doon Valley should come to a halt excepting in the case of a selected few, for reasons indicated in that order.
Since then from time to time sever al applications had been moved by the ex lessees seeking permission for removing the stacked material or extension of time for appropriating the mined material.
In allowing or rejecting each such application this Court has been express ing itself clearly that the Doon Valley should be made available for afforestation to make good the loss caused to the ecology.
By today 's order while disposing of all the pending applications including one fresh Writ Petition in the light of the report of the Monitoring Committee appointed by this Court, the Court, HELD: No application either for original permission or for extension of time shall hereafter be entertained by this Court and the Registry is directed by this order not to entertain such petitions.
It may be that such direction may affect some one who has not been vigilant or has on account of some other difficulty or hardship not been able to remove the stacked material within his leasehold area in the Doon Valley; but taking the broad interest of the entire Valley into account such individual losses or inconveniences have to be sacrificed and/or overlooked and equities can no longer be allowed to be invoked.
[76A B] A detailed report on the afforestation scheme may now be placed by the Monitoring Committee by 30th June, 1990 for consideration of the Court on 23rd July, 1990.
The rehabili tation scheme which has already been furnished by the appro priate committee should also be 73 placed before the Court for orders on the said date.
[80B C]


judgement:
Special Leave Petition (Criminal) No. 2531 of 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.
Ashok H. Desai, Solicitor General, Ashok Srivastava and Ms. Sushma Suri for the Respondents.
Syed Ali Raza Shafiq Mohammed was detained by an order of detention passed under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Sub stances Act, 1988 (hereinafter referred to as the Act) dated 19.12.88 by the Secretary (II) to the Government of Maha rashtra, Home Department.
The detention order and the grounds of detention were given to the detenu on 20th Decem ber, 1988.
It may be mentioned that on 19.12.88 the detenu was already in jail as his bail application had been reject ed.
The wife of the 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 Judg ment of the Bombay High Court.
Learned counsel for the petitioner raised the 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 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 272 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.
(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.
(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 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 violated the right of the detenu under article 22(5) of the Constitution 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 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 apprehension that the detention would be neces sary in order to prevent him from engaging in illicit traf fic in narcotic drugs and psychotropic substances, 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 de taining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibil ity 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 vs Government of Tamil Nadu & Anr., JT and Dharmendra Sugan Chand Chelwat.
vs Union of India & Ors.
, ; 273 On the other hand Learned,Solicitor General contended that it would depend on the facts and circumstances of each case whether a 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 account the nature of the antecedent activities of the detenu in order to arrive to the conclu sion that it is likely mat after his release from 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 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 for upholding the order of detention and there is no ground or justification for interfering in the order of the High Court.
Reliance in support of the above contention was placed on San jeer Kumar Aggarwal vs Union of India & Ors., JT We have given our thoughtful consideration to the argu ments advanced by Learned counsel for the parties on the above point.
The latest decision of this Court on the above point is Sanjeev Kumar Aggarwal vs Union of India & Ors., (supra) decided on 4th April, 1990 in which all the earlier cases decided by this Court have been considered including the cases of N. Meera Rani vs Dharmendra Sugan Chand Chelwat (supra) on which reliance has been placed by the Learned counsel for the petitioner.
It was observed in Sanjeev Kumar 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 circum stances.
Therefore, the facts and circumstances of each case have to be taken into consideration in the context of con sidering the order of detention in the case of a detenu who is already in jail.
The counsel for the detenu in the above case strongly relied on Smt.
Shashi Aggarwal vs State of U.P. & Ors., JT and Ramesh Yadav vs District Magistrate, Etah & Ors., and contended that the bail application could be opposed if moved or if en larged the same can be questioned in a higher court and on that ground the detention order should be held to be 274 invalid.
The Court negatived the above contention by observ ing that in N. Meera Rani 's case a Bench of three Judges noted the above observations in Smt.
Shashi Aggarwal '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 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 prejudicial 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 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.
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 premises who gave their names as Ali Raza Shafiq Mohamed (detenu in 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 transportation of Narcotic Drugs.
Telephone No. 6288769 was found installed in the prem ises.
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 No. 6284105 was found installed there, which is subscribed by the detenu.
The detenu also disclosed that he was having two shops (i) M/s Ali Decorators, G I, Parag Niketan, 10th Road, Juhu, Bombay400 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 former shop.
Nothing was seized from the 2nd shop.
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 you have a business of Video Libraries and Marriage decora tions; that you own the property and vehicles mentioned above; that you were initiated into drug trafficking 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 to deliver Heroin to customers 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 Municipal 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 to 5,000 that your main selling points were Colaba and Nariman Point; that there were a number of brokers hovering 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 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 col lect 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), 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 who has since died; that you did not know the address of Mangal Pandey, that you purchased the Heroin on credit; that over the last about 31/2 years you must have sold 300 kgs.
of Heroin that all the movable and immovable property acquired by you has been purchased from the profits from drug trafficking; that your income from legal business 276 of Video library and decoration is about Rs.2,000 per month.
" The statement recorded on 22.10.88 as mentioned in the grounds of detention is reproduced as under: "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 Man drax tablets and it is advisable to use different vehicles in this business; you further stated that Abdul Sattar and 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" 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) on 23.10.88 who remanded you to Judicial Custody till 4.11.88 which was extended from time to time.
You also filed appli cation for bail on 21.11.88 which was rejected by the AddI. Chief Metropolitan Magistrate, 8th Court, Bombay.
It may be further important.
to note that in the grounds of detention 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 of Rs. 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 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 drugs and Psychotropic substances.
1 am aware that you 277 are still in judicial custody but I am also aware that under 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.
" 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 conscious of the fact that the two other detenus who were arrested and de tained 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 traf ficking in 1984 and employed as a delivery boy on Rs.30 per day Within a short span of 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 trans portation of these Narcotic drugs.
The detaining authority after taking 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 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 It was next contended on behalf of the petitioner that the detention orders of Rai Chand Chandmal Shah and Jai lal Keshavlal Vora 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 deten tion should also be set aside.
278 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 which he sustained serious injuries and as such his alleged confes sional 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 his medical report having been placed in truncated form before the detaining authority, the certificate showing injuries in detail not having been placed before the detaining authority by the sponsoring authority, the detention became invalid.
Now so far as Jai Lal Keshav Lal Vora is concerned the High Court took the view that the statements 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 materi al is obliterated and excluded it is not possible to say that the remaining material is ample and more than suffi cient to justify the detention of Jai Lal K. Vora.
The detention order of Jai Lal K. Vora was also declared ille gal.
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 detention of the present detenu is not rounded on the truncated form 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 detention order of the present detenu.
Thus the present detenu cannot take advantage of any orders passed by the High Court declaring the detention orders of Rai Chand Shah and Jai Lal K. Vora as illegal.
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 unexplained delay of 21 days.
It was vehemently contended on behalf of the detenu that the detenu ought to have been served with the declaration 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 writ ing 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 article 22 of the Constitution a right is guaranteed to the detenu to afford an earliest opportunity of making a representation against the order of 279 detention.
It was contended that when the liberty of a citizen is taken 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 declara tion issued under Sec.
10(1) of the Act.
We see no force in the above contention.
So far as the provision of Sub Sec.
(3) of Sec.
3 of the Act is concerned it clearly provides that for the purposes of clause (5) of article 22 of the Constitution, the communication to a person detained in persuance of a detention order of the grounds on which the order has been made shah 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 provision thus relates to the commu nication of the grounds of detention.
In the case before us the grounds of detention were admittedly communicated on 20th December, 1988, while the detention order was of 19.12.88 Thus there is full compliance of the above provi sion and the order of detention cannot be challenged on this ground.
Now so far as the guarantee under Clause (5) of article 22 of the Constitution is concerned there can be no manner of doubt that the person detained under any law of preven tive 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 the Act reads as under: "Notwithstanding anything contained in this Act, any person (including a foreigner) in respect of whom an order 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 sub clause (a) of clause (4) of article 22 of the Constitution, the opinion of an Advi sory Board for a period longer than three months but not exceeding six months from the date of his detention, 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 Govern ment, not below the rank of an Additional Secretary to that Government, specially empowered for the 280 purposes of this section by that Government, specially 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 that effect within five weeks of the detention of such person.
" In the counter affidavit filed before this Court it has been stated in para (L) as under: "Regarding the declaration, it may be stated that the same was dispatched 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 Govern ment.
It was then sent for translation, 4th and 5th Febru ary, being holidays (being Saturday and Sunday) the declara tion was dispatched 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 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 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 making any effective repre sentation 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 Advisory Board.
The State Government re jected the representation 281 by its reply dated 21.2.89 and the Central Government by its reply 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 article 22 of the Consti tution 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 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 unexplained delay.
As a result of the above discussion, we find no force in this petition and it is accordingly dismissed.
Petition dismissed.

summary/full:
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 Sub stances Act, 1988.
The detenu was then already in jail as he was involved in a case under the Act, and his bail applica tion in that case had been rejected.
3"he 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 there was material to justify the apprehension that his detention would be neces sary in order to prevent him from engaging in illicit traf ficking 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 the ground that the medical report in respect of 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 unex plained delay in 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 each 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 ac count the nature of the antecedent activities of the detenu in order to 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 detain him in order to prevent him from engaging in such activities; and (iii) in the present case there was complete awareness in the mind of the detain ing authority that if he was released on bail he was likely to indulge in the criminal activities.
Dismissing the special leave petition, this Court, HELD: (1) The material placed before the detaining authority and the facts mentioned in the grounds of deten tion clearly go to show that the detaining authority was fully aware that the bail application filed by the detenu had been rejected.
The detaining authority was also con scious of the fact that the two other detenus who were arrested and 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 hay on Rs.30 per day and within a short 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] (3) The detaining authority after taking into consider ation the material placed before him, arrived at the conclu sion that the detenu being in judicial custody may under the normal law of the land he granted bail and be in a position to continue to pursue his nefarious activities [277E] (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] (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 of a detenu who is already in jail.
[273G] N. Meera Rani vs Government of Tamil Nadu, JT 478; Dharmendra Sugan Chand Chelwat vs Union of India, ; ; Sanjeev Kumar Aggarwal Union of India, JT ; Smt.
Shashi Aggarwal vs State of U.P., JT and Ramesh Yadav vs District Magistrate, Etah, , referred to.
(6) A perusal of the orders of the High Court quashing the detention 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 Shah which also formed integral and vital part of the grounds of detention of Jai Lal Vora being product of threats and injuries sustained by him and further his medi cal report having been placed in truncated form before the detaining authority, their detention became invalid.
But, so far as the case of the present detenu is concerned, his detention was based on entirely distinct and separate mate rials including his own confessional statements.
The basis of the grounds of detention of the present detenu is not rounded on the truncated form of medical report of injuries sustained by Rai Chand Shah.
Thus the present detenu cannot take advantage of any orders passed by the High Court de claring detention orders of Rai Chand Shah and Jai Lal Vora as illegal.
[278A E] (7) So far as the provision of Sub Sec.
(3) of Sec.
3 of the Act is concerned, it clearly provides that for the purposes of clause (5) of article 22 of the Constitution, the communication to a person detained in pursuance of a deten tion order of the grounds on which the order has been made shah be made as soon as may he 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 provision thus relates to the communication 01 ' the grounds of detention.
[279B C] (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 under Sec.
10(1) of the Act.
[280F] (9) There is no force in the contention that there was an inordinate 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 respondents.
[281A B] 271