Darshan Singh vs State of Punjab

K.P.S. Sandhu, J.

This petition of habeas corpus under Articles 22 and 226 of the Constitution of India has been filed by Darshan Singh petitioner praying therein that the order of detention of Gurdeep Singh detenu son of Shri Pradhan Singh, 6 Model Gram, Ludhiana, Annexure P/1 be quashed and set aside that being illegal.

2 The facts which gave rise to this petition are as under. On 22nd July, 1983, Gurdeep Singh detenu was apprehended by the Central Excise Prevention Staff, Ludhiana Division, at house No 827, Koocha No. 13, Field Ganj, Ludhiana This house belonged to one Jaswant Singh son of Harnam Singh. The detenu was found in possession of 697 pieces of wrist watches and 92 pieces of chains of foreign origin of the value of Rs. 1,85,540 which he had purchased from. various pedlars at Bombay without any bill, voucher or any other document showing their legal import, He smuggled these articles and brought them to Ludhiana on 22nd July, 1983. The watches and chains were seized by the Central Excise Preventive Staff, Gurdeep Singh is alleged to have made a confessional statement before the officers of the Central Excise Preventive Staff, Ludhiana Division on 22nd July, 1983. A copy of the same is annexed as P3 to the petition. On 23rd July, 1983, Gurdeep Singh gave a telegram to the Collector, Customs Chandigarh, stating therein that the confession had been obtained under, threat and pressure and thereby retracted the same The Governor'' of Punjab (detaining authority) after going through the material placed before him was pleased to order the detention of Gurdeep Singh aforesaid on 17th May, 1984, under Section 3(1) of the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, copy of which is Annexure P. 1 to the petition. The grounds of detention were supplied to the detenu under the signatures of the Deputy Secretary to Government. Punjab Home Department. A translation of the same annexed to this petition as P/2. Darshan Singh petitioner has challenged the order of detention of Gurdeep Singh through this petition.

In para No. 3 of the petition has been contended that the alleged confessional statement was retracted by the detenu on 23rd July, 1983, through a telegram sent by him to the Collector, Customs, Chandigarh, and that the telegram was never brought to the notice of detaining authority. The contention of the petitioner that the telegram sent by the detenu to the Collector, Customs, Chandigarh. retracting his confession was not placed before the detaining authority has not been controverted by the State in reply to para No 3 of the petition.

Mr. K. S. Thapar, learned counsel for the petitioner, has contended at the outset that the omission on the part of the Customs Department to place the telegram before the detaining authority vitiates the subjective satisfaction of the detaining authority and renders the detention of Gurdeep Singh detenu illegal, as the telegram retracting the confession was a material and vital fact which could influence the mind of detaining authority one way or the other. In this context he has placed reliance on the Supreme Court authority reported as Ashadevi v. K. Shivraj. Additional Chief Secretary to the Government of Gujarat, and another, (1979) 1 Supreme Court Cases 222, wherein their Lordships were pleased to hold that :

"If material or vital faces which would influence the mind of the detaining authority one way or the other on the question whether or not to take the detention order are not placed before or are not considered by the detaining authority, it would vitiate its subjective satisfaction rendering the detention order illegal. The detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiates the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital fact likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order."

In Ashadevi''s case (supra), the Customs authorities had failed to report to the detaining authority the retraction of the confessional statement by the detenu. It was held that the fact of retraction would have its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order of detention. Hence, there was nonapplication of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the impugned detention order invalid and illegal.

As is obvious from the impugned detention order in the present case. the confessional statement made by the detenu before the Customs authorities was one of the main considerations which weighed with the detaining authority. Therefore, the omission on the part of the Customs authorities to place before the detaining authority the telegram retracting the confession sent by the detenu certainly amount to the withholding a vital and material fact which could influence the mind of the detaining authority one way or the other. I am of the view that the impugned order of detention is liable to be quashed on this ground alone.

Apart from this, there is a time gap of ten months between the prejudicial activity of the detenu and the order of detention passed by the detaining authority for which no explanation has come forth. In this situation, it cannot be said that the ground that the detenu was found in possession of smuggled articles in July, 1983, furnishes a nexus to the purpose for which the detention order was passed in May, 1984. Support for this view can be sought from Sk. Abdul Munnaf v. The State of W.B, AIR 1974 Supreme Court 2066, wherein their Lordships were pleased to hold that if in a given case the timelag between the prejudicial activity of a detenu and the detention order made because of that activity is exfacie long, the detaining authority should explain the delay in the making of the detention order with a view of show that there was proximity between the prejudicial activity and the detention order.

For the aforesaid reasons, the petition succeeds and the detention of Gurdeep Singh detenu under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, is set aside.