Balwinder Singh vs State of Punjab and Others

P.K. Jain, J.—This petition has been filed by the detenu Balwinder Singh son of Shri Amrik Singh for quashing the detention order No. 1/83/93-3HIII (COFEPOSA)/1509 dated 17-12-1993 (Annexure P-l'') and the grounds of detention of the even number and date, passed by respondent No. 1 in exercise of the powers conferred by Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (herein after referred to as ''the Act'') and with a prayer that he be released forthwith from the illegal detention.

The allegations on the basis of which the impugned detention order has been passed may be gathered from the grounds of detention (Annexure P-/1).

On 8-2-1993, on the basis of a specific information, the Customs and Police Officers of Amritsar, laid a joint Naka at G. T. road near Ram Talai turning. At about 8-30 p.m. one Satbir Singh son of Lakha Singh was noticed coming on a grey coloured Bajaj Chetak Scooter (without registration number).After preliminary enquiry, the search of the scooter resulted into recovery of 119 gold biscuits bearing foreign markings and Indian currency of Rs. 6,49,200/-. The same were seized under the Customs Act under a Panchnama and seizure recovery memo dated 8-2-1993. The recovered gold was valued at Rs. 55,52,064/-. On 17-2-1993, in pursuance of a disclosure statement made by said Satbir Singh, six gold biscuits bearing foreign markings and Indian Currency worth Rs. 7,84.800/- were recovered from a tin which was buried in his field adjacent to his house.

On 9-2-l993, a police party of Kotwali Police Station, Kapurthala, intercepted three persons, namely, Balwinder Singh son of Gurbax Singh, Paramjit Singh alias Pamma son of Tarlok Singh and Amrik Singh son of Niranjan Singh and recovered 35 gold biscuits from them and a first information report No. 21 dated 9-2-93 was lodged at Police Station, Kapurthala.

Aforesaid Satbir Singh made statements on 8- 2-1993, 17-2-1993, 23-2-1993 and 24-2-1993 before the Superintendent of Customs u/s 108 of the Customs Act, 1962, wherein he admitted that on 8-2-1993 the gold and Indian Currency were recovered from him in the manner as alleged. He also stated that on information given by Balwinder Singh son of Gurbax Singh, he along with Balwinder Singh, Amrik Singh, Suba Singh, Balli and Satti hatched a conspiracy. They looted Paramjit Singh alias Pamma who abandoned the scooter and they found 200 gold biscuits from inside the scooter. On 24-1-1993 Amrik Singh came to him and gave Rs. 2,00,000/- and a scooter and also informed that they were trying to dispose of the gold biscuits. On 7-2- 1993, Suba Singh had also gone to the house of Satbir Singh and handed over 119 gold biscuits and Indian currency worth Rs. 6,49,200/- for safe custody.

Balwinder Singh son of Gurbax Singh made a statement on 6-3-1993, wherein he admitted that he had been indulging in transportation of smuggled gold along with Jarnail Singh, Pritam Singh and Sahib Singh, from the year 1988 and onwards and that in March 1990, he along with Jarnail Singh, Pritam Singh and Balwinder Singh was apprehended along with 200 gold biscuits. After their release, Jarnail Singh died in a road accident. Balwinder Singh met Paramjit Singh at the Bhog ceremony of Jarnail Singh at village Dhun in the year 1992, where Paramjit Singh gave a proposal to Balwinder Singh for transportation of gold from Sambha to Jalandhar, which was accepted by him. On 2-1-1993, Satbir Singh, Amrik Singh, Suba Singh and Balwinder Singh again snatched the gold biscuits from Paramjit Singh after overpowering him.

Paramjit Singh alias Pamma in his statement dated 6-3-1993, disclosed that he along with Jarnail Singh and Karam Singh had been in the smuggling activities of gold since 1992 and was apprehended by the Police of Jammu & Kashmir on suspicion in March 1992. He also disclosed that at the Bhog ceremony of Jarnail Singh, he met Amrik Singh and his son Balwinder Singh i.e. the detenu. At that ceremony, the detenu and his father offered Paramjit Singh for transportation of gold from border near Jammu to Jalandhar, and Paramjit Singh would be paid Rs. 15000/- for every trip. The detenu took Paramjit Singh to a place near village Gapore near Sambha and showed him a bohar tree and disclosed that two persons from Pakistan would come there after crossing the border and they would hand over the gold biscuits to Paramjit Singh who would hand over the same to the detenu. Paramjit Singh further stated that he had successfully made a trip of 120 gold biscuits for the detenu in December 1992, but on 2-1-1993, when he was transporting 200 gold biscuits, he was looted, as stated above. The petitioner had also taken Paramjit Singh to an unknown place and subjected him to third degree methods when latter had disclosed that he had mentioned about the transporation of gold to Balwinder Singh and on the influence exercised by the detenu the CIA Staff, Kapurthala, apprehended Balwinder Singh and recovered 31 gold biscuits from him. The residential premises of Balwinder Singh, Satbir Singh, Paramjit Singh Sakattar Singh alias Satti and the detenu in village Havellian were searched on 9-2- 1993, 10-2-1993, 11-2-1993, 12-2-1993 and 16-4- 1993, respectively, but nothing incriminating was recovered.

On the above allegations, respondent No. 1, after being satisfied that the petitioner had been abetting the smuggling of gold as stated above, passed the impugned detention order.

The petitioner has challenged the legality and validity of the impugned detention order on the grounds:- (i) that the prejudicial event is dated 8- 2-1993 and the order of detention is dated 17-12- 1993 i.e. the detention order was passed after 10 months which cannot be either bona fide or preventive in nature as contemplated by the Act; (ii) that the detention order was passed on 17-12-1993 but the petitioner was arrested and detained on 25-4-1995 i.e. after a period of more than 16 months, which goes to show that there was no genuine subjective satisfaction on the part of the Detaining Authority for detaining the petitioner; and that (iii) the copies of the search authorisation warrants in respect of the premises of the petitioner were never supplied to the petitioner on account of which the petitioner has been deprived to exercise his fundamental right of making an effective representation against his detention. It has been further stated that the representation made by the petitioner against his detention had also not been decided promptly and the unreasonable delay in deciding the same has vitiated the detention of the petitioner.

The respondents have contested the petitioner. In the return, it has been stated that the petitioner has been detained on the ground of abetting smuggling of gold; that the delay caused in passing the detention order can be attributed to the procedural requirement for scrutinising the papers put up to the Detaining Authority; and it is after full application of mind and detailed consideration of the facts of the case, the detention order was passed. It has been further stated that the petitioner was evading arrest and was at large and consequently he was declared a proclaimed offender and could be arrested on 21-4-1995. It has been explained that since nothing was recovered from the search of the residential premises of the petitioner, the non-supply of copy of the authorisation of search warrants does not deprive the petitioner of his fundamental right in making an effective representation against the detention order. It is also stated that the representation of the petitioner was forwarded to the Central Government without any delay and the same was rejected under intimation to the petitioner. Thus, it is stated that the detention order has been passed in accordance with law and is not liable to be set aside.

The prejudicial activity complained of is dated 8-2-1993. The proposal for detention was sponsored for the first time on 30-6-1993 i.e. after a period of more than 41/2 months. The detention order was passed on 17-12-1993 i.e. after 10 months of the prejudicial activity and after 51/2 months of the initiation of the proposal for detention. The detention order was executed on 21-4-1995 i.e. after a period of more than 16 months from the date of passing of the detention order. An additional affidavit has been sworn by the Deputy Secretary to respondent No. I for giving an explanation regarding this delay caused firstly in passing the detention order and thereafter in execution thereof.

Needless to emphasise that an order of detention is not a curative or reformative or punitive action but a preventive action, the avowed object of which being to prevent the anti-social and subversive elements from imperilling the welfare of the country or the security of the nation or from disturbing the public tranquillity or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances, etc. In Ashok Kumar Vs. Delhi Administration and Others, , the apex Court explained the purpose and avowed object of preventive detention in the following words:-

"Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing."

It was further observed by their lordships that:-

"In view of the above object of the preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to be very vigilant and keep their eyes skinned but not to turn a blind eye in securing the detenu and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority will defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate the entire proceedings."

In Rabindra Kumar Ghosel alias Buli Vs. The State of West Bengal, , Jagan Nath Biswas Vs. The State of West Bengal, and Md. Sahabuddin Vs. The District Magistrate, 24 Parganas and Others, , it was held that inordinate delay in passing the order of detention after the prejudicial activity relied upon will be fatal to the plea of subjective satisfaction and the detention would be quashed. In other words, there must be a ''live and proximate link'' between the prejudicial activity complained of and the order of detention. This chain is snapped by the long and unexplained delay. Further, in appropriate cases it may be assumed that the link is snapped if there is long and unexplained delay between the date of order of detention and the arrest of the detenu. The obvious reason is that after unexplained delay, it may be assumed that there was no real and genuine apprehension that the detenu was likely to act in any manner prejudicial to public order.

In P.U. Iqbal Vs. Union of India (UOI) and Others, ), their lordships of the Supreme Court, after reviewing the case law on the point, were pleased to observe as under (para 18) :-

"If there is unreasonable delay between the date of the order of detention and the date of arrest of the detenu, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently render the detention order bad and invalid because the ''live and proximate link'' between the grounds of the detention and the purpose of detention is snapped in arresting the detenu. A question whether the delay is unreasonable and stands unexplained depends on the facts and circumstances of each case."

In all the aforesaid eases before the apex Court a delay of 3 to 7 months either in passing the detention order or in exeeution thereof was held to be fatal to the detention order as the delay had not been satisfactorily explained.

In the present case the prejudicial activity dated back as 8-2-1993 and the impugned order of detention was passed on 17-12-1993 i.e. 10 months from the alleged prejudicial activity. Even according to the respondents themselves the proposal for detention was initiated on June 30, 1993 i.e. about 4''/2inonths of the alleged prejudicial activity. There is absolutely no explanation as to why such a long delay of 41/2 months was caused in initiating the proposal itself for detention of the petitioner. This delay in itself is enough to doubt the subjective satisfaction of the detaining authority for passing the impugned order. Even after the proposal for detention was initiated in June 1993, the various officials/ officers took a long time of about 6 months in recommending and thereafter in passing the detention order by the concerned authority. The conduct of the various agencies of the respondents between June 1993 to December 1993, as explained in para 1 of the additional affidavit, reveals the lucid and apathetic attitude on their part. The matter does not end there. Even after the passing of the detention order on 16-12-1993, the authorities could be able to execute the same on 21-4-1995. Thus, they were conspicuously sleeping over the matter well nigh nearly 11/2 years. The explanation offered in the said para of the additional affidavit that the detenu was a fugitive, eluding arrest, is too incredible to be swallowed. No Court will implicitly accept this kind of incredible explanation.

The adverse effect of the aforesaid delay in passing the impugned detention order and then in execution thereof in passing the impugned order throws considerable doubt on the genuineness of the subjective satisfaction of respondent No. 1 and consequently renders the detention of the petitioner bad and invalid.

For the reasons mentioned above, I accept this petition and quash the detention order-Annexure P-1 and the grounds of detention Annexure P.1/A. The petitioner shall be set at liberty forthwith, if not wanted in any other case.