Amrik Singh vs State of Punjab

I.S. Tiwana, J.

The petitioner who is detained under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, the Act) seeks the quashing of the said order dated January 16, 1986, copy of which is Annexure P.2 on the record of this case. It reads as follows :

"Whereas the Governor of Punjab is satisfied that you Amrik Singh @ Chimku s/o Tara Singh, Jat r/o (Naushehra Dhalla) Havelian, P.S. Gharinda, District Amritsar, have been abetting the smuggling of goods, smuggling goods and dealing in smuggled goods and, therefore, it is necessary to make an order directing that you Amrik Singh @ Chimku be detained with a view to preventing you from indulging in the above mentioned prejudicial activities in future.

Now, therefore, in exercise of the powers conferred by subsection (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (Parliament Act No. 52 of 1974), the Governor of Punjab is pleased to direct that you Amrik Singh @ Chimku be detained.

You have a right to make representation in writing against the order, under which you are being detained. If you wish to make such representation you should address it to the State Government through the Superintendent of Jail as soon as possible."

It has been impugned on a wide variety of grounds, including the one that the detention was not ordered by any authority specified in Section 3 of the Act. The challenge in this regard is contained in paragraphs Nos. 11 and 12 of the petition which read as follows :

"11. That Section 3 of the 1974 Act provides that the power to make orders detaining an individual can be passed by the Central Government or by the State Government or any officer of the Central Government of the rank not below that of a Joint Secretary who is specially empowered or any officer of the State Government, not below the rank of a Secretary to Government specially empowered for the purpose of Section 3 by that Government. Since the detention order appears to have been passed by the Punjab Government, the order should have been made by the State Government. However, a reference to the order, copy Annexure P.2, served on the petitioner it is evident that the detention order bears the signatures of sole Under Secretary Home. However, according to Section 3 of the 1974 Act, such an order can be passed only by an passed not below the rank of Secretary to that Government and that too if that Secretary is specially empowered by the State Government for the purpose of making an order in terms of Section 3 of the 1974 Act. Therefore, the detention order allegedly passed by the respondent State does not appear to have been passed by a competent authority and as such, it is nonexistent in the eye of law.

That it has not been communicated to the petitioner that the order Annexure P.2 had been passed by an officer who had been specially empowered to pass an order as required by section 3 of the 1974 Act, and so, prima facie, the detention order is bad in law and the petitioner cannot be detained on the strength thereof."

Reply to paragraphs Nos. 11 and 12 in the form of an affidavit of Shri V.V. Chadha, Under Secretary to Government, Punjab, Home Department, is in the following manner :

"11. That the contents of paragraph No. 11 are denied being incorrect. The order of detention was passed by the competent authority as per the rules of business, copy whereof is at Annexure P.2.

That the contents of para No. 12 are denied being incorrect for the reasons stated above."

A bare reading of this reply shows that the deponent has felt shy of disclosing as to who actually was the authority who had ordered the detention of the petitioner. It was not for the deponent to judge and say that the authority who had ordered the detention of the petitioner was the competent authority or the official who had actually passed the order and this was to be left to the Court to judge as to whether that authority was competent to pass the order under the provisions of section 3 of the Act. Normally, I would not have allowed the learned State Counsel to produce anything more in support of the abovenoted averment in the written statement, yet in order to satisfy myself and to find out as to actually who was the authority who had ordered the detention of the petitioner, I allowed him to place all the requisite material before me. At the outset, he relied on an copy of the Standing JUDGMENT of the Chief Minister dated June 19, 1986, (now copy placed on record and marked as A.1) which purports to have been passed under Rules 18 and 19 of the Rules of Business, 1985, of the Government of Punjab directing that the cases pertaining to the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, shall be dealt with in HomeIII Branch of the Punjab Civil Secretariat under the administrative control of the Secretary to Government, Punjab, Department of Home Affairs and Justice and shall be disposed of by him in the manner indicated in this order. Firstly this order specifying the authority to dispose of the cases under the Act is subsequent to the date of the order of detention i.e. dated January 16, 1986 and would, therefore, obviously not make the Home Secretary completely to pass the detention order on that date and secondly this order to my mind, cannot be said to have "specially empowered" the Home Secretary "for the purpose of this section". It is clear from the language of the section that in case the detention order has to be passed by a Secretary to the State Government then he has to be one who has specially been empowered for the purpose of this section. General authorisation to deal with the matters under the Act cannot possibly be a substitute for special authorisation or entitlement to pass the detention order under this Section. The Standing JUDGMENT Annexure P1 nowhere states that the Home Secretary would be competent to pass the detention order under Section 3 of the Act.

Further, it is a apparent from the language of the impugned order Annexure P.2, which has been reproduced in the opening part of this judgment, that it purports to have been passed by the State Government or in other words the Governor of Punjab, but as per the record the original detention order had concededly been passed by the Home Secretary to the State Government. How the Home Secretary becomes the State Government itself is not made clear by the learned State Counsel in any manner. I am, therefore, satisfied that no legal or valid order of detention has been passed by any competent authority to detain the petitioner under the abovenoted section. I, therefore, without going into the other challenges launched on behalf of the petitioner, quash the impugned order Annexure P.2 and direct that the petitioner should be set at liberty forthwith. He is also made entitled to costs of this litigation which I determine at Rs. 1,000/.