Amrik Singh alias Chamku vs State of Punjab and Others

V.K. Bali, J.—Amrik Singh through present petition filed by him under Articles 226/227 of the Constitution of India seeks direction to be issued to the respondents to release him immediately by setting aside Order No. 1/41/91(COFEPOSA)/1697 dated 18.9.1991 (Annexure P-1).

There are several points raised in this petition asking for the desired relief but the point mainly argued by Mr. R.S. Ghai, Sr. Advocate, ld. Counsel appearing for the petitioner is that concededly the prejudicial activity indulged by the petitioner is alleged to be of 2.10.1990 whereas detention order in this case was passed on 12.9.1991 i.e. after a period of about 11 months and that still further the order of detention was executed on 28.7.1994 i.e. almost after a period of three years. For his contention that when there is unexplained delay in executing the detention order, then the detention order is liable to be quashed, the ld. Counsel has relied upon the judgment of the Apex Court in P.U. Iqbal v. Union of India and Ors. 1992 Criminal Appeal Reports 53. This judgment was followed by me while quashing the detention order in Crl. W.P. No. 588 of 1994 Baldev Singh @ Deba Adhi v. The State of Punjab and Ors. on 17th of January, 1995.

The only point that thus requires determination in this case is as to whether there is some plausible explanation for the delay in executing the order of detention. In pursuance of the notice issued by this Court, two replies have been filed one by respondent No. 2, Superintendent Central Jail, Amritsar and other on behalf of Respondent No. 1 which has been filed by way of affidavit of Shri K.G. Banga, Under Secretary Home, Government of Punjab, Department of Home Affairs and Justice, Chandigarh. In so far as reply of Respondent No. 2 is concerned all that is mentioned concerning contention of the ld. Counsel for the petitioner noted above is that it pertains to Respondent No. 1. Respondent No. 1 in his reply has averred that there is no mechanical test for counting the period of interval between the criminal activity and the order of detention, as also that the detention of the petitioner is very much valid since it was not occasioned by any laxity but was the result of full and detailed consideration of facts and circumstances relating to the involvement of the petitioner in smuggling activities. The case was detected on 2.10.1990 when the petitioner was arrested in case F.I.R. No. 138 of 2.10.1990 u/s 307 of the Indian Penal Code, Police Station, Gharinda and detention order was passed on 12.9.1991. Even otherwise, there is no hard and fast rule laid down as to the length of time that can be fixed for taking decision under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the ''COFEPOSA Act'') regarding one''s detention and it took sufficiently long time in the investigation of the case at various levels. After collecting and thoroughly examining the entire material on record the sponsoring authority sponsored the proposal on 25.2.1991 to the State Government for detention of the petitioner which was received in the office of respondent No. 1 on 27.2.1991 and the proposal was examined in the legal agency on 28.2.1991. Some additional information was called from the sponsoring authority vide State Government letter dated 12.3.1991. The case was again examined in the legal agency on 30.4.1991 in the light of information received from sponsoring authority vide letter dated 19.4.1994 which reached the office of respondent No. 1 on 2.4.1991. Some more clarifications as to what action has been taken against A.D.A. (Legal) and to recast grounds of detention was sought from the sponsoring authority vide State Government letter dated 2.5.1991. On the basis of the information sent by the sponsoring authority vide letter dated 16.5.1991 which was received in the office of respondent No. 1 on 21.5.1991, the case was further examined by the legal agency on 24.5.1991. Some more clarifications were called from the sponsoring authority vide letter dated 27.5.1991. The case was further examined from 17.6.1991 to 20.6.1991 in the legal agency. In the meantime, the case was further examined and original grounds of detention in Punjabi were prepared and the same were translated in English. Number of copies of supporting material were typed which was quite a voluminous job and consumed sufficiently long time. The case was again examined on 10.7.1991 in the legal agency in the light of information received from the sponsoring authority vide letter dated 3.7.1991, which was received in the office of respondent No. 1 on 5.7.1991. Some more clarifications as to whether the petitioner was on bail or still in jail was sought from the sponsoring authority vide State Government letter dated 11.7.1991. The proposal was further examined by the legal agency on 27.8.1991 and ultimately the proposal for passing detention order against the petitioner was sent to the State Government. It has further been mentioned in the written statement that after consideration of material on record, with due application of mind, the order of detention was passed by the competent authority on 12.9.1991. The formal order was passed on 17.9.1991. It is also stated that quite a number of days in between were holidays.

In so far as delay in executing the order of detention is concerned, it is pleaded that the petitioner could not be served the order of detention for about three years. Strenuous efforts were made to serve the detention order upon the petitioner but he was playing hide and seek with the police and was intentionally evading the execution of the detention order and that non-service of detention order for about three years does not mean that the detention order passed against the petitioner was illegal. In fact, he was absconding and intentionally went under ground and concealed himself and his whereabouts could not be known. It is also pleaded that the petitioner cannot be allowed to take advantage of his own wrong. The gap period between the passing of detention order till the date of execution could not be of any benefit to the petitioner.

Since the explanation given with regard to delay in executing the order of detention was not found sufficient by this Court in view of the law laid down by Apex Court in P.U. Iqbal''s case (supra), the respondents were given time to file additional affidavit explaining the delay as also whether in this case any steps were taken as envisaged under Sections 82 and 83 of the Code of Criminal Procedure and Section 7(1)(b) of COFEPOSA Act. An additional affidavit has been filed and all that is mentioned there is that the detention order was passed against the petitioner on 18.9.1991 which was received in the office of the executing authority i.e. Sr. Superintendent of Police, Amritsar on 23.9.1991. The order of execution was marked to Shri Gurdev Singh D.S.P. who conducted several raids at the known addresses of the petitioner but the petitioner was not available. After the retirement of Gurdev Singh DSP, the detention order was handed over to Mohinder Singh DSP for execution who had conducted several raids on the known residences of the petitioner but the petitioner was not available. However, Mohinder Singh, DSP arrested the petitioner on 28.7.1994. When the detention order was served upon him and he was detained in the Central Jail, Amritsar.

A perusal of the facts extracted above would, thus, manifest that there was no notification u/s 7 of the COFEPOSA Act nor any complaint was filed u/s 7(1)(a) of the said Act. No proceedings were also taken under Sections 82 and 83 of the Code of Criminal Procedure. The Supreme Court in P.U. Iqbal''s case (supra) where no proceedings were initiated by the respondents under Sections 82 and 83 of the Code of Criminal Procedure and also no notification was issued u/s 7(1)(a) of the COFEPOSA Act held as follows:

Reverting to the case on hand, as we having pointed out ibid, there has been nearly 7 months'' delay at the hands of the Circle Inspector in executing the Warrant and a total period of one year delay in securing the detenu and serving the order from the date of the passing of the detention order by the detaining authority, which delay is unreasonable and stands unexplained. In our opinion, the lucid apathetic attitude and the oblivious and contumacious conduct of the Inspector in not acting with greater promptitude in securing the detenu but conspicuously sleeping over the matter wellnigh nearly 7 months have rendered the order of detention invalid. The explanation offered by the second respondent and the police officers that the detenu was a fugitive, eluding the dragnet of the detention order is too incredulous to be swallowed. Further, no Court will implicitly accept this kind of incredible explanation.

I also took the same view following the observations of the Supreme Court in P.U. Iqbal''s case (supra) in Baldev Singh''s case (supra). On the perusal of the record, it is amply proved that there is unexplained delay in executing the order of detention which, as mentioned above, in the present case is nearly three years.

This petition, thus succeeds and is accordingly allowed. The order of detention Annexure P-1 is set aside on the ground of unexplained delay and the petitioner is ordered to be set at liberty forthwith if not involved in any other case.