Balkar Singh vs Secretary to Government Punjab

S.D. Bajaj, J.

On grounds mentioned in Annexure P1/A detenu petitioner Balkar Singh was ordered to be detained vide order Annexure R1 dated 30th August, 1989. After obtaining the advice of Advisory Board, his preventive detention for a period of two years from 23rd December, 1989, the date of apprehension and arrest, was confirmed vide order Annexure P2 dated 29th May, 1940. Detenu Balkar Singh has filed Cr. WP No. 2123 of 1990 for quashing his detention on the grounds that there was want of application of mind by the detaining authority to the facts and circumstances of the present case while making the detention order which was, therefore, not based on its subjective satisfaction, that there was no proximity between the grounds of detention and the order of detention because the grounds relate to November, 1988 and the order of detention was passed 10 months later on 30th August 1989, that the representation of the petitioner made on 21st July, 1990 was declined after inordinate delay on 6th September, 1990, that the detenu petitioner was already on bail with effect from 12th August, 1989 much before the date of detention order and that the petitioner was actually detained on 23rd December, 89 nearly 3 months and 21 days after the making of detention order against him on 30th August, 1989.

It was conceded in reply that the petitioner was already on bail with effect from 12th August, 1989 before the making of the detention order against him on 30th August, 1989, that the detention order was made by the detaining authority on applying its mind wholeheartedly to the facts and circumstances of the case and on its subjective satisfaction, that there was close nexus between the prejudicial activity attributed to the petitioner and the impugned order of detention and that the representation of the petitioner was dealt with, with utmost expedition at various levels.

I have heard Shri A.S. Sandhu, Advocate, for the petitioner, Shri S.S. Saron, A.A.G. Punjab for the State and have carefully gone through the entire material on record.

All the four submissions urged for assailing the legality of the detention order Annexure P1 are being dismissed hereinafter ad seriatum

(i) Proximity and nexus between prejudicial activity and the order of detention :

The prejudicial activity alleged against the detenu petitioner is of early November, 1988 while the order of detention was passed 9/12 months thereafter on 30th August, 1989. Explaining the delay it is urged in para 7 of the reply

"The contents of this para arc wrong and hence denied. It is denied that there, is no nexus between the prejudicial activity and the detention order, which was passed on 381989. The prejudicial activity relates to 111188 and the recovery was effected from the fields of Puran Singh on 121188, and the case against the petitioner was registered on 131183. The petitioner kept absconding and was arrested only on 22.2.89 in this care. On 10.3.89, he made a confessional statement before the competent authority. The proposal for detaining the petitioner was moved by the SSP/Tarn Taran on 10589 and it was forwarded to the Govt. by the District Magistrate, Amritsar on 16589. The proposel was received by, the Govt. on 18589 and was dealt with by the office on the same day. It was dealt with by the Legal Agency of the CID from 19.589 to 29589 and some additional information was called for from the SSP/Tarn Taran on 1689. A TPM reminder was issued to the SSP/Tarn Taran on 16.6.89. Interim reply was received from the SSP/Tarn Taran on 22.6.89 and TPMs were again issued to him on 3789 and 11789. His reply was received on 24.7.98. During this period voluminous material was got typed, cyclostyled and the proposal was cleared by the Legal Agency of the CID on 16.8.89. The case Was submitted to the Govt. and ultimately the detention order was passed on 30.8.89. This it is clear that the case was dealt with at all levels with promptitude and there was no unnecessary delay at any level. The delay of 10 months in passing the order of detention stands duly explained".

The explanation offered is far from satisfactory. It was held by the 1974 Supreme Court in Lakshman Khatik v. The State of West Bengal, AIR 1974 SC 1264, Jagan Nath v. The Static of West Bengal, AIR 1975 SC 1516, S.K. Serajul v. State of West Bengal, AIR 1975 SC 1517 that 6 to 8 months delay in making the detention order was fatal to the legality of the detention order. Similarly following the Supreme Court, this Court also held that 8 and 9 months delay in passing the detention order from the date of prejudicial activity is fatal in Amrik Singh @ Mika v. The State of Punjab and another, 1987(1) Recent CR 443 , Sawinder Singh alias Mohinder Singh v. State of Punjab and another, 1988(2) Chandigarh Law Reporter 557 and Harinder Singh alias Bhola Sarpanch v. Union of India and another, 1989(2) Recent CR 565.

It has been urged by the learned counsel for the respondent State with reference to the observations made in Gora v. State of West Bengal, All 1975 SC 473 and Yogendra Murari v. State of U.P. and others, AIR 1998 SC 1835 that mere delay in passing the detention order may not be conclusively fatal, but in that case the detaining authority is under an obligation to take the court into confidence and disclose how its mind had been working from the date of daining knowledge of the prejudicial activity of the detenu. In the instant case the activities attributed to the petitioner on the basis of which his detention is sought to be justified were carried on, as already indicated, from beginning of November, 1988 for a period of 12 days only. These activities stood abandoned or at least have not been shown to be continued for about 91/2 months from 12th November, 1988 to 30th August, 1989 the date of passing of the impugned order. The order appears to be punitive rather than preventive. It has repeatedly been held by this Court as also the Apex Court of the country that the purpose of passing detention order is not to punish the detenu for his activities in the distant past but is rather to prevent him from carrying on activities which are otherwise found to be prejudicial under the Act. The detention order Annexure R1 thus gets vitiated on this score.

(ii) Want of application of mind :

In the order of detention Annexure R1 the petitioner is stated to be in custody while it is conceded in the reply that the petitioner was already on bail with effect from 12th Aug., 1989. It was observed by the Supreme Court in Anant Sakharam Raut v. State of Maharashtra and another, 1988(1) Recent Criminal Reports 618 : AIR 1987 SC 137.

"We do not think it necessary to go into all the grounds urged before us by the petitioner''s counsel in support of his prayer to quash the order of detention. The one contention strongly pressed before us by the petitioner''s counsel is that the detaining authority was not made aware at the time the detention order was made that the detenu had moved applications for bail in the three pending cases and that he was enlarged on bail on 1311986, 1411986 and 15.1.1986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention.

In our view this is the short manner in which the two cases can be disposed of. If the petitioner is found disturbing law and order or misusing, the bail granted to him, the authorities would be at liberty to move the appropriate court to get the bail orders cancelled. One does not know how the detaining authority would have acted if he was made aware of the above details.

We are not satisfied that this is a fit case to resort to preventive detention. We refrain from referring to the other grounds urged before us and from examining them. The petitioner is entitled to succeed on the first ground".

Following the Supreme Court observations aforesaid the Delhi High Court also made identically the same observations in Dinabandhu Mondal v. Union of India and others, 1989(1) Recent CR 390 : 1988 Criminal Law Journal 802 and Jean Sala v. Union of India and others, 1988 Criminal Law Journal 1640. In the present case also the detaining authority was not aware of the fact that the detenu petitioner was already on bail with effect from 12th August, 1989 much before the making of the detention order against him on 30th August, 1989, and its execution on 23rd December 1989. There was thus nonapplication of mind to this aspect of the matter by the detaining authority and the detention order Annexure R1 gets vitiated on this score as well.

(iii) Representation, delay in disposal of the representation put in by the detenu petitioner was received by the authorities concerned on 7th August, 1990 and disposed of on 6th September, 1990 nearly 1 month after its receipt. The explanation offered for the delay reads, "The detention order was passed by the detaining authority after satisfying himself that the petitioner had been indulging in the import of narcotic drugs into India and concealment of the same."

Commenting upon 21 days delay in disposal of the representation from 3rd June, 1980 to 24th June, 1980 their lordships of the Supreme Court observed in Harish Pahwa v. State of U.P. and others, AIR 1981 Supreme Court 1126 : "We may make it clear, as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of 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. We would emphasise that it is the duty of the State to proceed to determine representations of the character above mentioned 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 (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. This not having been done in the present case we have no option but to declare the detention unconstitutional. We order accordingly, allow the appeal and direct that the appellant be set at liberty forthwith". This view was approved by the Supreme Court itself in Mahesh Kumar Chauhan alias Banti v. Union of India and others, 1990(2) RCR(Crl.) 639 (SC) : 1990 Supreme Court Cases (Crl.) 434 . In the present case inordinate unexplained delay is much more viz. from 21st July, 1990 to 6th September, 1990 i.e. for a period of 11/2 months. Detention order Annexure P1 is required to be quashed on this score as well.

(iv) In pursuance of detention order dated 30th August, 1989, the petitioner was actuary arrested and detained on 23rd December, 1989. Speaking of delay in securing arrest of the detenu from 30th August, 1987 to 23rd December, 1989 it was observed in para 10 of the reply, "The contents of this para are admitted. The detention order was passed on 30889 and sent to the SSP/Tarn Taran for execution. It was served on the detenu on 23121989. As the detenu was evading the execution of the detention order, the detention order could not be served on him earlier than 23121989". Adverting to this aspect of the matter their lordships of the Supreme Court observed in T.A. Abdul Rahman v. State of Kerala and others, 1989(2) Recent CR 459 : 1990 Criminal Law Journal 578

"The conspectus of the above decisions can be summarised thus : The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the livelink between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities, and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactory examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the casual connection has been broken in the circumstances of each case.

Similarly when there is unsatisfactory and unexplained delay between the date of order or detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner.

In the light of the above proposition of law, we shall now examine the first contention which has been raised for the first time before this Court. From the reading of the counteraffidavit filed on behalf of the first respondent, it is seen that the detaining authority has attempted to explain the laxity that has occasioned in passing the impugned order, but miserably failed in explaining the delay of three months in securing the arrest of the detenu from the date of passing of the order and keeps stunned silence on that score. The learned counsel appearing for the first respondent, when queried by this Court whether he could give any reason for this undue delay in arresting the detenu on 1811988 in pursuance of the impugned order of detention made on 7101987, has frankly admitted that he could not do so, rightly so in our view, in the absence of any explanation in the counteraffidavit. The Superintendent of Police, Malapurram to whom the detention order was forwarded for execution has not filed any supporting affidavit explaining the delay in securing the arrest of the detenu. Under these circumstances, we hold that leaving apart the question of delay in passing the order of detention from the date of the seizure of the gold, the fact remains that the detaining authority has failed to explain the long delay in securing the arrest of the, detenu after threemonths from the date of the passing of the detention order and this nonexplanation in our view throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority vitiating the validity of the order of detention".

The unexplained delay adverted to in the authority was of three months while in the present case it is of 3 months and 3 weeks added to it. Inordinate unexplained delay aforesaid reflects adversely upon the subjective satisfaction of the detaining authority. Detention order Annexure R1 gets vitiated on this score as well.

For the reasons given above, Criminal Writ filed by the detenu petitioner is allowed, detention order Annexure R1 is quashed and the detenu is ordered to be set at liberty forthwith; if not required in any other case.

JUDGMENT accordingly.