Ajit Pal Singh vs Union of India, Ministry of Defence

Harmohinder Kaur Sandhu, J.

Ajit Pal Singh Sethi petitioner is confined in Central Jail, Patiala under the order dated June 1, 1992 Annexure P1 passed by Joint Secretary to Government of India in exercise of the power conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act) based on grounds Annexure P2. The petitioner has filed this petition under Articles 226/227 of the Constitution of India assailing the order Annexure P1 and praying for issuance of a writ in the nature of habeas corpus with a direction to the respondent to release him immediately.

The brief resume of relevant facts, figuring in the grounds of detention is that on May 4, 1992 on receipt of specific information that a jeep bearing Registration No. PB08E/0992 would be transporting contraband gold the officers of the Directorate of Revenue Intelligence of Amritsar, with the help of BSF personnel intercepted the same alongwith tits two occupants i.e. the petitioner and one Daljit Singh. The jeep was escorted to D.R.I. Office at Amritsar and thorough checking of the same was conducted in the presence of two independent witnesses which resulted in detection of two ingeniously made cavities on both sides of the rear mudguards of the jeep. On opening those two cavities 7 cloths vansalies were recovered which were found to contain in all 728 foreign marked gold biscuits of 10 tolas each all weighing 84.8 kgs. All the articles were seized alongwith the jeep. The recovered gold biscuits were checked by two gold smiths of Amritsar who made their joint report to the effect that gold was of 24 cts purity, and it valued at Rs. 3,65,001,64.

The petitioner was unable to produce any evidence documentary or otherwise about the lawful import of the recovered gold. The same was, therefore, seized on a reasonable plea that it was liable to confiscation.

The petitioner was examined in terms of Section 108 of the Customs Act wherein he admitted the recovery and seizure of 7.8 foreign marked gold biscuits. The petitioner also stated that these gold biscuits belonged to Amrik Singh a resident of village Havellian, District Amritsar and he was to hand over the jeep alongwith concealed gold to one of the carriers of Amrik Singh at Nakodar Chowk, Jalandhar city. He further admitted that he used to get Rs. 500/ per trip for transporting the smuggled goods and Rs. 500/ extra as travelling expenses. Earlier he had smuggled gold three times and for that job he had received Rs. 7500/.

The Special Secretary to the Government of India considered all these facts and was satisfied that the petitioner was likely to engage in transporting smuggled goods into and through the inland area 50 kilometres in width from IndoPakistan border in the State of Jammu and Kashmir which was an area highly vulnerable to smuggling as defined in Explanation I to Section 9(1) of the Act. Accordingly the impugned order was issued and was served on the petitioner. The grounds of detention alongwith documents were also furnished.

I have heard Mr. R.S. Ghai, Senior Advocate with Mr. Bipin Ghai, Advocate the learned Counsel for the petitioner and Mr. D.D. Sharma, counsel for the respondent and have also gone through the record.

In the petition various grounds were taken challenging the order Annexure P1 but the learned Counsel for the petitioner restricted his argument only on two points i.e. delay in the disposal of representation made by the petitioner and the petitioner being already in custody at the time of passing of the order of detention was not likely to indulge in unlawful activities. In para 13 of the petition it was averred that the petitioner made representation against the order annexure P3 but the same was not decided till the filing of the present petition on July 14, 1992 and this delay in deciding the representation was illegal and was itself a sufficient ground for setting aside the impugned order. The learned Counsel referred to the return filed by the respondent wherein it was admitted that representation of the petitioner dated July 4, 1992 forwarded by Jail Authority was received in COFEPOSA Unit of the Ministry on July 6, 1992 and it was rejected on July 20, 1992 by the Finance Minister and intimation regarding rejection was given to the petitioner on July 21, 1992. It was urged that representation made by the petitioner was not considered within a reasonable time and this delay invalidated detention of the petitioner. Reliance was placed on the case of Harish Pahwa v. State of U.P. and others, AIR 1991 SC 1126 wherein it was observed :

"The representation made by a detenu has to be considered without any delay. The Supreme Court does not look with equanimity upon delays when the liberty of a person is concerned. Calling comments from other departments seeking the opinion of the Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. It is the duty of the State to proceed to determine representations with the utmost expedition which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously until a final decision is taken and communicated to the detenu. Where this is not done, the detention has to be declared unconstitutional."

There cannot be any dispute that a representation made by detenu is to be dealt with promptly without undue delay but then each case has to be determined on its own facts. Para 13 of the return filed in this case shows that representation made by the petitioner on July 4, 1992 was received in COFEPOSA unit of the Ministry on July 6, 1992 and on the same comments were called on July 7, 1992. Comments were received on 13/4.7.1992. The case was processed and was put up before Joint Secretary (COFEPOSA) on 15.7.1992. He submitted the case to D.G. (EIB) and Chairman (CBDT) on July 16, 1992. The case was considered on the same day and was submitted to the Finance Secretary. It was then forwarded to the Finance Minister on July 17, 1992 who rejected the representation of the petitioner on July 20, 1992. The representation was thus disposed of within a period of 15 days including the holidays falling in between. It is thus clear that the representation of the detenu was dealt continuously until a final decision was taken and communicated to the petitioner. There were no laches or negligence on the part of the authorities dealing with the representation of the detenu. In Mst. L.M.S. Umma Salema v. B.B. Gujral and another, AIR 1981 (sic) it was observed that the time imperative can never be absolute or obsessive and that the occasional observations made by this Court that each day''s delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. In the instant case there had not been any delay in dealing with the representation at any stage and accordingly the order of detention cannot be rendered invalid on that ground.

It was next urged by the learned Counsel for the petitioner that at the time of passing the order of detention the petitioner was already in custody and was not in a position to indulge in prejudicial activities when his request for bail had been declined. No compelling reasons have been mentioned in the detention order which urged the detaining authority to pass an order inspite of the fact that the petitioner was in custody and his bail application had been dismissed. A reference was made to para 9 of the Annexure wherein the detaining authority had mentioned that he had gone through the various applications made in the Court of Chief Judicial Magistrate, Amritsar and orders passed thereon. He was also aware that the petitioner was in judicial custody in Central Jail, Amritsar but possibility of his getting released on bail could not be ruled out. So, keeping in view his role in the case he was fully satisfied that until prevented he may indulge in smuggling activities in the like manner in future. It was contended that detention under the Act was preventive and not punitive and was meant to check prejudicial ***184 smuggled goods. That could be done only if the petitioner had been released from his earlier detention. But when the petitioner was already in custody and his bail application had been rejected there was no ground to order his detention. In support of his contention the learned Counsel placed reliance on the case of Tarlok Singh v. Union of India, 1989(1) All India Criminal Law Reporter 729. In this case also a detention order was passed to prevent the detenu from smuggling activities while he was already in custody. His bail application had been declined. It was held that there was no likelihood that the petitioner will come out of Jail. His detention was illegal.

In the instant case the detaining authority was aware that the petitioner was already in custody and mere apprehension of the detaining authority that there was likelihood that the petitioner may be released on bail did not furnish any valid ground for passing detention order. In the case of Ramesh Yadav v. District Magistrate, Etah, 1985(4) S.C.C. 232, it was observed :

"On a reading of the grounds particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed. We are inclined to agree with counsel for the petitioner that the order of detentive in the circumstances is not sustainable and is contrary to the well settled principles indicated by this Court in series of cases relating to prevention detention. The impugned order, therefore, has to be quashed."

The petitioner in the present case was arrested on May 4, 1992 and he moved his bail application before Chief Judicial Magistrate, Amritsar which was fixed for hearing on 2.6.1992. The order of detention was passed just a day earlier without waiting for the decision of the bail application. The bail application was ultimately dismissed and this completely washed out the apprehension of the detaining authority. It was confirmed that there was no chance of the petitioner coming out. If the petitioner was not to come out of jail, he could not possibly indulge in objectionable activities and in the circumstances his detention cannot be upheld.

In the result I allow this petition, set aside the order of detention and direct that the detenu be released forthwith unless he is lawfully detained in some other case.