Daljit Singh @ Bhola vs State of Punjab

S.D. Bajaj, J.

During the period 14th April, 1986 to 22nd October, 1986 detenupetitioner Daljit Singh was allegedly involved in smuggling arms and ammunitions from Pakistan and, therefore, respondent State clamped upon him the order of detention dated 24th April, 1987 which was admittedly served upon the petitioner on 23rd April, 1987 which was admittedly served upon the petitioner on 23rd January, 1988. JUDGMENT of detention Annexure P.1 was issued by the respondent under Section 3(1) of the conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974.

Detenupetitioner Daljit Singh has filed Criminal Writ Petition No. 27 of 1989 for quashing the detention order Annexure P.1 based on grounds of detention Annexure P.1/A on the grounds that the petitioner was arrested on the basis of First Information Report No. 150 dated 22nd October, 1986 registered against him under Section 25 of the Arms Act and Sections 3/4 of the Terrorist Detention and Disruptive (Prevention) Act in Police Station Khalra district Amritsar and thereafter released on bail but the detention order Annexure P.1 was passed by the Detaining Authority against him oblivious of both the facts aforesaid of his initial arrest and later release on bail, that the inordinate delay from 14th April, 1986 to 23rd January, 1988 snaps the link between the alleged prejudicial activity and his belated detention and that the Detaining Authority never applied its mind to the peculiar facts and circumstances obtaining in his case and, therefore, the order of detention gets vitiated.

Factual position regarding arrest of the petitioner on 22nd October, 1986 and his subsequent release on bail by the Designated Court is not disputed. Similarly, it is also conceded that the prejudicial activities attributed to the detenupetitioner are of the period from 14th April, 1986 to 22nd October, 1986 while the petitioner was actually detained in pursuance of the order Annexure P.1 dated 24th April, 1987 on 23rd January, 1988.

Explanation for the inordinate delay from 22nd October, 1986 to 23rd January, 1988 furnished in paragraphs 8 and 12 of the reply reads as follows :

"In reply to the contents of this para, it is submitted that test of proximity is not to applied mechanically and if there is reasonable explanation, regarding the time taken in processing the case and in passing the order of detention the nexus remains alive, than the delay in passing the order of detention is not material. Proximity of the prejudicial activities with the detention order is to be determined not from the first prejudicial activity but from the last prejudicial activity which in this case is of 22.10.1986 which lead to the registration of case FIR No. 150 dated 22.10.1986 as mentioned in para No. 4 of the grounds of detention. It took sufficiently long time to complete the investigation of the case, Interrogatory statement of the petitioner was recorded on 26.10.1986, whereas of his coassociate was recorded on 9.11.1986. After completing the investigations of the case, S.P. Anti Smuggling Amritsar sent proposal to SSP Amritsar on 4.12.1986 for detention of the petitioner. At SSP level sufficient time was consumed for processing the maintaining of law and order problem in the District besides attending to other such like cases SSP Amritsar sent the proposal vide his office letter dated 8.1.1987 to D.M. Amritsar who sponsored the same to the State Government vide his office endorsement dated 8.1.1987. Detention proposal was received in the office of the Answering Respondent on 12.1.1987 (10 and 11 January were holidays). Case was processed and examined at various levels from 13.1.1987 to 23.2.1987 (17, 18, 24, 25, 26, 31 January : 1, 7, 8, 13, 14, 15, 21 and 22 February were holidays). Grounds of detention were prepared in Punjabi and the same were translated into English. This was quite a voluminous job and consumed sufficient time. Ultimately, this of was completed on 23.2.1987 where the cases was sent to State Law Department on 23.2.1987. Case remained under examination in State Law Department upto 2.3.1987 (26, 28 February and Ist March were holidays) and was ultimately received in the office of the Answering Respondent on 3.3.1987. Case was finally examined and was put up before the competent authority who after due consideration and after applying his mind ordered the detention of the petitioner on 21.4.1987 and formal order of detention was issued on 29.4.1987 (8, 15, 16, 21, 22, 23, 28, 29 March : 4, 5, 7, 11, 12, 14, 17, 18, 19, 25 and 26 April were holidays). Number of other similar cases were also processed in the office of the Answering Respondents and each case was dealt with turn. Thus there is no delay in passing the order of detention as the time taken in passing the order of detention stands fully explained."

"In reply to the contents of this para, it is submitted that after the passing of detention order, the petitioner went under grounds to evade the execution of detention order. Strenuous efforts were being made to arrest the petitioner and there was every likelihood of his being apprehended at any time, so police authorities did not feel the necessity to invoke the provisions of Section 7 of the COFEPOSA and to make a move for cancellation of the bail. Delay in executing the order of detention was due to going underground of the petitioner to avoid the execution of the order of detention. The detention order could not be termed as punitive."

In similar circumstances, Hon''ble Mr. Justice M.K. Chawla of the Delhi High Court observed in Ranjit Singh and another v. Union of India, 1989 Crl. Law Journal 152, as follows :

"The case of the respondents is that immediately after the commission of the offence, the detenus absconded and were not available at their places of residence. They successfully avoided service of the detention order. It was with great difficulty that service was effected. The delay, if any, is not fatal, and the object of detention has not been frustrated."

"Is the explanation a valid one ? Its answer will settle the fate of the petitions. On facts, it is not disputed that in the case of Ranjit Singh, there is a delay of about 141/2 months whereas in the other case the order of detention could not be served for one year. It is the case of the petitioners that they were always available at the usual place of residence. Ranjit Singh goes on to state that he received at his Delhi address a show cause notice date 14.4.1986 under Section 124 of the Customs Act from the Collector of Central Excise, Chandigarh, which he replied on 1.10.1986 from Jullundur. With this background, it can safely be said that prima facie, the explanation of the respondents is not convincing one. It is not show as to how many attempts were made to locate the petitioners at their residence or business premises and what reports were received by the persons deputed for the purpose. No affidavit of the serving officer has been filed giving the details of action taken in this behalf. The long delay, in my opinion, remains unexplained."

"Even if it be assumed for the sake of arguments that the detenus were absconding, then the only course open to the respondents was to follow the statutory provisions of Sections 4 and 7 of the COFEPOSA Act. These provisions contains the procedure for execution of detention orders and the powers of the appropriate Government in relations to absconding persons. Under the Act, the detention orders are to be executed in the manner provided for the execution of warrants of arrest under the Crl.P.C However, if the appropriate Government has reason to believe that the person in respect of whom a detention order has been made, has absconded or is concealing himself so that the order cannot be executed, then in that case the Government is required to make a report in writing of the fact to a Metropolitan Magistrate having jurisdiction in the place where the said person ordinarily resides. The Metropolitan Magistrate in that situation shall have recourse to the provisions of Sections 82, 83, 84 and 85 of the Cr.P.C. Secondly, the Government may also, by order notify in the Official Gazette, the Government may also, by order notify in the Official Gazette, direct the said person to appear before such officer, at such a place and within such period as may be specified in the order. Its noncompliance may land him to imprisonment. The COFEPOSA Act is a complete Code in itself as far as the service of the detention order on the absconding person is concerned. The respondents have not taken any steps to follow this procedure. In fact there is no averment in the counteraffidavit. The mere assertion, without proof, that the detenus intentionally avoided service of the order of detention is neither here nor there. The delay, thus has not been satisfactorily explained."

The well settled proposition as laid down in the numerous judgments of the Supreme Court as well as other High Courts is that, 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, woudl throw considerable doubt on the genuineness of the subjective satisfaction of the Detaining Authority and it would be legitimate for the Courts to draw an inference that the Detaining Authority was not really and genuinely satisfied as regards the necessity for detaining the petitioner. It was so held in the latest judgment of the Supreme Court reported as Bhanwar Lal Ganesh Mal v. State of Tamil Nadu, 1979 SCC (Cri.) 318 : 1979 Cri. L.J. 462, where on similar facts, it was observed as under :

"The purpose of detention order the COFEPOSA is not punitive but preventive. There must be a "live and approximate link" so that if there is a long and unexplained delay between the order of detention and arrest of the detenu, the order of detention may be struck down unless the grounds indicate a fresh application of mind of the Detaining Authority to new situation and the changed circumstances."

"It is no doubt true that the courts cannot lay down any time lag as to how far distant, the past conduct should be, to justify the conclusion that the person concerned, if not detained may indulge in prejudicial activities, but if there is long gap between the prejudicial activity of a detenu and the detention order, then in that case the Detaining Authority is dutybound to explain the delay, with a view to show that there was proximity between the prejudicial activity and the detention order. If it is not reasonably explained, the necessary consequence must follow, i.e., an inference may be drawn that there is no nexus between the incident and the order of detention. In this view of the matter, the order of detention is liable to be struck down as invalid."

Regarding the delay from 22nd October, 1986 to 24th April, 1987 my learned brother Harbans Singh Rai, J. in Parduman Singh v. State of Punjab, 1988(2) Recent Criminal Reports 423 observed :

"Another ground taken by the learned Counsel for the petitioner is that the grounds of detention date back to October 12, 1986 to October 31, 1986 and the detention order was passed on May 28, 1987, and it was served on December 19, 1987, and there is no proximity between the events mentioned in the grounds of detention and the order of detention and the detention itself. The order of detention was issued seven months after the first alleged incident and this delay of seven months is not explained. The learned Counsel for the petitioner has relied upon Jagan Nath Biswas v. The State of West Bengal, AIR 1975 SC 1516, wherein it was held :

`Maintenance of Internal Security Act (1971), Section 3 Inordinate delay in passing order of detention after the occurrence of the incidents relied on Delay not explained bona fides of subjective satisfaction'' of Detaining Authority held not established.

In my view, the grounds of detention had become stale and on this grounds also the detention is liable to be quashed."

It has again been held in Anand Sukh Ram Raut v. State of Maharashtra and another, AIR 1967 Supreme Court 137 and by our own High Court in Arjan Singh v. State of Punjab, 1988(1) Recent Criminal Reports 44 that in case a detenupetitioner is already on bail when the order of detention is either passed or served upon him and the Detaining Authority is not aware of it while making the order of detention, there is clear in application of mind on the part of the Detaining Authority and the order of detention passed by it against the detenupetitioner gets vitiated on this score.

For the reasons given above, the criminal writ succeeds and is allowed. Detention order Annexure P.1 is quashed and the detenupetitioner Daljit Singh is ordered to be set at liberty forthwith.