Achhar Singh vs State of Punjab

S.D. Bajaj, J.

Detenupetitioner Achhar Singh has filed Criminal Writ Petition No. 1470 of 1989 for quashing the detention order Annexure P. A dated 17.6.1988 based on grounds of detention Annexure P/1A on the grounds (i) that there is neither nucleus nor proximity between the alleged prejudicial activity of November/December, 1987 set out in Annexure.P/1A and the detention order passed on 17.6.1988, after seven months which was again served on the petitioner through his detention on its basis on 26.12.198 nearly one year and one month after the alleged prejudicial activity aforesaid and (ii) that the detention came to be examined by the Advisory Board on 4.4.1989 and was confirmed by the State Government on the basis or opinion tendered by the Advisory Board on 26.5.1989, much after the statutory period of three months.

In para Nos. 8 and 9 of the reply, it was asserted that there was close proximity between the prejudicial activities and the date of the detention order which was also served on the detenu petitioner with due promptitude. Regarding of detenu before the Advisory Board and confirmation of his detention more than three months after 26.12.1988 it was asserted that Declaration No. 6 of 1989 made under Section 9 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 was issued by Additional Secretary, duly empowered in this behalf, in file No. 675/1184/88Cus. VIII on 30th January, 1989 in respect of the petitioner and as such there was no illegality involved therein.

I have heard Shri A.S. Sandhu, learned counsel for the petitioner Shri S.S. Saron, AAG, Punjab for the State and have carefully gone through the material on record.

Learned counsel for the petitioner has frankly conceded that after the issuance of declaration No. 6 of 1989 in respect of the petitioner on 30.1.1989, the second ground urged by him for rendering the detention of the petitioner illegal is rendered wholly without merit.

Illegality of the detention order Annexure P. 1 based on grounds of detention Annexure P.2 is, therefore, being assailed on the solitary ground of want of proximity between the prejudicial activities attributed to the petitioner (being of November/December, 1987) and the impugned order of detention which came to be passed on 17th June, 1988 and the detenu petitioner having been actually detained on its basis on 26 12.1988. The order of detention was, therefore passed after 6/7 months after the date of prejudicial activity and was actually served, through detention of the petitioner, on its basis, after the expiry of 13 months from the date of alleged prejudicial activity attributed to the petitioner. Relevant Paragraphs No 8 and 12 of the reply read, "The contents of this Para are admitted to the extent that the prejudicial activities pertain to November, `1987'' and December, 1987. The detention order was passed on 17.6.1988 after six months of the last prejudicial activity. The case was processed with promotitude at all the stages. There is also a close nexus between the last prejudicial activity and the detention order as the case remained under active processing during this period. The time taken in passing the detention order is reasonable and has been adequately explained. The petitioner and his coassociate Davinder Singh were arrested on 19.12,1987 and the interrogation statements were recorded on 26.12.1987 and 25 12.1987 respectively. Thereafter investigation of the criminal case continued and efforts were made to arrest the other coassociates of the petitioner who were dodging the police. After this the entire material was linked and processed in the office of the S.P. AntiSmuggling, Amritsar, who vide his office letter dated 30.1.88 forwarded the material collected to the SSP, Amritsar where also the entire material was again linked and processed and got legally examined. After the completion of the investigation of the criminal case, the SSP, Amritsar vide his office letter dated 15.4.88 placed the entire material before the District Magistrate, Amritsar, who after examining the whole case, sponsored the detention proposal vide his letter dated 15.4 83. Thus, the proposal could originate only after completion of investigation of the criminal case and interrogation of the petitioner and his coassociates and after preliminary scrutiny of the case in the above said offices which took time. The detention proposal sponsored by the District Magistrate Amritsar was received at the State Headquarters on 18.4.88. From 18.4.89 to 2.5 88, the proposal was examined at various levels and it was felt necessary to call for some additional information from the district authorities. During this period, 23/4, 24/4, 30/4 and 1.5.88 were holidays. On 4.5.88. letter was despatched to the district authorities to supply the required information which was supplied by the latter vide letter dated 17.5.88 after collecting it from the concerned quarters. This letter was received on 19.5.88. After this, the proposal again remained under examination at various levels from 19.5.1988 to 23.5.88. Thereafter tentative grounds and other supporting material were ordered to be typed which was quite a voluminous task. On 6.6.88, after checking the tentative grounds and other supporting material, the case was sent to the State Law Departmental, which gave its advice on 7.6 88. consideration. 7.6.88 the case was received in the office of the answering respondent where it remained under scrutiny at various levels from 7.6.88 to 14.6.88. During this period. 11//6 and 12/6 ware holidays. On 15.6.88, the case was put up before the competent authority who passed order on 15 6 88 after due on Formal order of detention was issued on 17.6.88. Thus, the time taken in passing the detention order is reasonable and has been adequately explained. The case was processed with promptitude at all the stages and as such there is a close nexus between the prejudicial activities and the detention order. The order of detention is bonafide as it was passed without any extraneous consideration and is purely of preventive nature."

In reply to this para, it is submitted that there is no delay in executing the detention order. The detention order passed by the State Government was sent to the district authorities for execution. The SSP, Amritsar further deputed the DSP/Rural, Amritsar for execution. The Petitioner was ultimately traced and arrested on 26.12.88. There was no need to have recourse to the provisions of Section 7 of the COFEPOSA Act or move for cancellation of the bail, as the petitioner was arrested within a reasonable time."

S. In almost similar situation it was observed by the Supreme Court in Jagan Nath Biswas v. The State of West Bengal, AIR 1975 Supreme Court 1516 and by my learned brother H.S. Rai, J. in Parduman Singh v. State of Punjab, 1988(2) Recent Criminal Reports 423. "Another ground taken by the learned counsel for the petitioner is that the grounds of detention date back to October 12, 1986 to October 31, 1986 and the detention order was passed on May 28, 1987, and it was served on passed December 19, 1997, and there is no proximity between the events mentioned in the grounds of detention and the order of detention and the detention itself. The order of detention was issued seven months after the first alleged incident and this delay of seven months is not. explained. The learned counsel for the petitioner has relied upon Jagan Nath Biswas v. The State of West Bengal, AIR 1975 SC 1516, wherein it was held :"Maintenance of Internal Security Act (1971), Section 3 Inordinate delay in passing order of detention after the occurrence of the incidents relied on Delay not explained Bona fides of subjective satisfaction" of detaining authority held not established" in my view, the grounds of detention had become stale and on this ground also the detention is liable to be quashed " In Ranjit Singh and another v. Union of India, 1989 Crl. L.J. 152 Hon''ble Mr. Justice M K. Chawla of the Delhi High Court observed.

If there is unreasonable delay between the date of the detention order and the date of arrest of the detenu, such delay, unless satisfactorily explained would throw a considerable doubt in the genuineness of the subjective satisfaction of the detaining authority and it would be legitimate for the Court to draw an inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu. When there is a long gap between the prejudicial activity and the detention order, then the detaining authority is duty bound to explain the delay with a view to show that there was proximity between the prejudicial activity and the detention order. If it is not reasonably explained, the necessary consequence would be to draw an inference that, there is no nexus between the incident and the detention order. Therefore, where the detenu was arrested and the detention order served on him after more than a year from the date of the detention order and the long delay has not been satisfactorily explained, the detention order is liable to be struck down as invalid. The Act is a complete Code in itself as far as the service of the detention order on the absconding person is concerned. Therefore, even if the detenu was absconding, the only course open to the authorities was to follow the statutory provisions of Ss. 4 and 7. When the authorities have not taken steps to follow this procedure, the mere assertion without proof that the detenu intentionally avoided service is not enough and the delay remains unexplained."

The timelag of seven months between the date of prejudicial activity attributed to the petitioner and the issuance of the detention order Annexure P 1 from November/December, 1987 to 17.6.1988 and another six months and ten days taken to detain the petitioner on the basis of the detention order aforesaid renders the petitioner''s detention illegal.

It was urged by Shri S.S Saron with reference to the Supreme Court''s observations made in Gora v. State of West Bengal, AIR 1975 Supreme Court 473 and Ashok Narain v. Union of India and others, AIR 1982 Supreme Court 1222 that the timelag on both the counts was the result of full and detailed consideration of the facts of the present case and as such the petitioner''s detention on the basis of detention order Annexure P.1 could not be termed illegal.

Neither the ratio of the authorities cited nor the explanation for delay in making and execution of the detention order in any way supports the argument advanced by the learned counsel. It is nowhere stated in the reply (reproduced from para 12) as to how an inordinately long period of more than six months was spent in taking the detenupetitioner in custody on the basis of detention order. Even recourse to Section 7 of the Act ibid was also not. taken for this purpose.

For the reasons given above, Criminal Writ Petition No. 1470 of 1999 succeeds and is allowed. Detenupetitioner Achhar Singh is ordered to be set at liberty forthwith; if not required in any other case.