Chand Singh vs Union of India

T.H.B. Chalapathi, J.

This writ petition is filed for issuance of a writ of habeas corpus directing the release of the petitioner who is confined in Central Jail, Patiala in pursuance of the order passed by respondent No. 1 under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

According to the petitioner, he was arrested on 13.12.1994 in a case FIR No. 282 dated 13.12.1994 for the offence under Sections 18/61/85 of the Narcotic Drugs and Psychotropic Substances Act and in that case he was acquitted by the learned Additional Sessions Judge, Ludhiana on 9.7.1997. Meanwhile on 11.1.1996, the impugned order under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 for the detention of the petitioner has been passed.

According to the petitioner, he was not involved in any activity relating to Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 and the detention order has been passed only on the basis of the alleged confessional statement said to have been made by him and there is no material on record to show that he has been indulging in illicit traffic in Narcotic Drugs and Psychotropic Substances Act. He was prosecuted only in one case which ended in acquittal. Therefore, the order passed on 11.1.1996 is illegal and liable to be set aside. It is also averred that the detention order is vague and no specific allegations have been made therein against the petitioner and there is delay of more than one year in passing the order after recording the alleged confessional statement. Thus the delay vitiates the detention order. It is further averred that that a reference to the Advisory Board was made after lapse of considerable time. On this ground also, the detention order is liable to be quashed. It is also averred that there is delay in communicating the order to the petitioner.

In the reply filed by the Joint Secretary to Government of Punjab, Department of Home Affairs and Justice, Chandigarh it was averred that 20 kgs of opium was recovered from the petitioner on 13.12.1994 and the case was registered in FIR No. 282 dated 13.12.1994 under Section 18 of the Narcotic Drugs and Psychotropic Substances Act at Police Station Jagraon. But is admitted that the accused has been acquitted in the said case. It is further averred that there was sufficient material before the competent authority to order detention of the petitioner with a view to preventing him to indulge in the prejudicial activities in future. It is also averred that the petitioner was detained on 23.2.1996 and the grounds of detention have been supplied to the petitioner on the same day and the representation made by the petitioner to the Government of Punjab as well as to the Government of India have been rejected and the petitioner was detained on 23.2.1996 and reference was made to the Advisory Board on 22.3.1996.

The order of detention reads that the Governor was satisfied that the petitioner has been engaging in possession and transportation of Narcotic Drugs within the meaning of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act and it is necessary to make an order directing the petitioner to be detained with a view to preventing him from indulging in the above mentioned illicit activities in future.

No material has been referred to in the order of detention. In the grounds of detention which are annexed as R2 only one incident that took place on 13.12.1994 has been mentioned. It also contains a reference to the alleged confessional statement made by the petitioner on 16.12.1994 according to which the petitioner admitted that he came into contact with one Balwant Singh who told him that he was doing the business of poppy husk and if the petitioner who was the drivercumowner of the truck carried the poppy husk, he would be paid a sum of Rs. 20,000/ per trip. It is further stated in the confessional statement that in 1992, the petitioner came into contact with one Charni alias Charan Singh at Ludhiana who told him that he is doing the business of selling opium and if the petitioner can bring opium from Indore, he would purchase the same in whole sale and the petitioner agreed to the same. It is also referred to the incident that took place in the month of March 1994 according to which the petitioner had brought 5 kgs of opium from a person who is known as Pehlwan from Indore to Ludhiana. There are references of other incidents alleged to have taken place in the months of June, August and December, 1994 showing that the petitioner brought the opium from Rajasthan and sold the same at Ludhiana.

All the grounds of detention mentioned in Annexure R2 were based only on the confessional statement of the petitioner. There was no other material placed before this Court apart from the confessional statement said to have been given to the police. It is settled law that the confessional statement cannot be used against the petitioner. There must be some independent evidence to show that the petitioner was carrying on business or dealing in the illicit traffic in Narcotic Drugs and Psychotropic Substances Act to attract the provisions of Section 3(1) of the said Act. No material other than the alleged confessional statement, has been mentioned in the grounds of detention or placed before this court in these proceedings. But the fact remains that the accused was acquitted in the case registered in FIR No. 282 dated 13.12.1994, P.S. Jagraon. Therefore, the registration of the case and alleged confessional statement cannot be made a ground for detention of the petitioner. Further the alleged statement was said to have been given on 16.12.1994 and the detention order has been passed on 11.1.1996 i.e. (after) more than one year. Thus there is a considerable delay in passing the order of detention. On this ground alone, the order of detention is liable to be quashed. Apart from that, as already observed, there is also no independent material to show that the petitioner was engaged in trafficking in the Narcotic Drugs and Psychotropic Substances. In the absence of any independent material other than the confessional statement, the order of detention cannot be sustained. It has been held by the Apex Court in Ahamded Mohaideen Zabbar v. State of Tamil Nadu and others, 1992(2) RCR(Crl.) 762 : 1999(4) SCC 417 that unreasonable delay in passing the order of detention vitiates the same and is liable to be set aside.

In this view of the matter, I am of the opinion that the order of detention is liable to be quashed.

I accordingly allow the criminal writ petition and quash the order of detention dated 11.1.1996.