Daura Singh vs Union of India

Harmohinder Kaur Sandhu, J.

By this petition under Articles 226/227 of the Constitution of India, the petitioner has assailed the order dated 1331991 Annexure P1 passed by Joint Secretary to Government of India, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (the Act for short) whereby he was ordered to be detained and kept in custody with a view to prevent him from smuggling goods.

The brief facts of the case as gathered from the grounds of detention Annexure P2 are that on 14111990 on receipt of some information a special picket was held in the area of Rajatal by the Customs Preventive Staff Amritsar and BSF personnel. At about 0305 hours on 15111990 two persons were seen coming. They were challenged to stop at which one of them fired on the picket parties. The other person who was the petitioner was apprehended and on his personal search, he was found to be in possession of seven packets containing 10 gold biscuits each bearing foreign markings. Under the cover of darkness the companion of the petitioner escaped. On search of the surrounding area a bandolier which was found abandoned in the field of Smt. Shindo was recovered and that too was found to contain 7 packets of 10 gold biscuits each. These 140 gold biscuits were weighted and were found to be of foreign origin of 24 carats purity the value of which was Rs. 55,50,160/. These were seized by the Customs Preventive Staff Amritsar under Section 110 of the Customs Act. In his statement under Section 108 of the Customs Act, 1962 the petitioner admitted that on 13111990 he met Kashmir Singh of village Lopoke in Guru Nanak Hospital, Amritsar where Kashmir Singh offered him Rs. 50000/ for helping him to bring some goods and he agreed to do the job. Kashmir Singh brought the gold biscuits from across the border and handed over him on bandolier containing 70 gold biscuits, Joint Secretary to the Government of India, considering the circumstances of th case arrived at a conclusion that the petitioner smuggled goods into India and unless prevented he was likely to indulge in such activities in future. Thus the detention order which is assailed by this petition was passed.

The petitioner alleged that the impugned order was liable to be set aside as the alleged prejudicial activity was of 15111990 and the detention order was passed on 3031991 and there was no explanation for delay of about 4 months in passing the order of detention. He was release on bail on 1911991 and there was no allegation that while on bail he indulged in any prejudicial activity. The order was passed just to defeat the order of grant of bail. The detention order was not executed till November, 1992 and there was no explanation for delay in executing the order of detention. In this way the intention of the detaining authority to prevent the petitioner from smuggling goods was not genuine. There was no allegation that earlier to the present occurrence of subsequent thereto he ever indulged in any prejudicial activity. There was nonapplication of mind by the Detaining and the order was liable to the set aside for this reason.

In the return filed by respondents it was contended that the competent authority had thoroughly gone into the details of the case was well as the real fact of the case and it was only then that subjective satisfaction to detain the petitioner was formed. It was maintained that when the petitioner was granted bail, he took an extra persecution not to indulge in smuggling activities and had temporarily suspended it lest he should invite more trouble in the event of his reapprehension. It was further maintained that after passing of the order necessary steps were taken to execute the same by visiting the addresses given by the detenu but he could not be traced out as he was absconding. He could only be traced out on 25111992 and on the same date detention order was served.

I have heard the counsel for the parties and have perused the record.

Of several grounds urged in the petition, the learned counsel for the petitioner stressed only one contention seeking to set aside order of detention. He urged that detention order was passed on 1331991 but it was not executed till November 25, 1992. There was a delay of one year eight months in executing the order and that itself showed that the opinion formed by the detaining authority that the petitioner was likely to indulge in smuggling activities if not prevented was not formed on any genuine apprehension and in fact there was no necessity to detain the petitioner. In support of his contention the learned counsel placed reliance on the case of Rajiv Talwar v. Union of India and another, 1991(1) Recent Criminal Reports 118 . In this case the detention order was passed on May 19, 1989 and it was not served upon the detenu till he presented a petition for setting aside that order. There was no indication available on the file that the authorities had resorted to any coercive measures for ensuring the detention of the petitioner as envisaged under Section 7 of the COFEPOSA Act. It was held that it showed that the detaining authority was not serious about future propensity of the detention to indulge in smuggling activities and order of detention was liable to be quashed on this ground. I find that this contention of the learned counsel is quite tenable. In the instant case a perusal of the reply submitted by the respondent shows that the only explanation for delay in executing the order, given by the respondent is that police authority and sponsoring authority took steps by visiting at the addresses given by the petitioner but he could not be traced as he was absconding. This explanation cannot be considered as satisfactory. No action was taken against the petitioner under Section 7 of the Act if he was found absconding. Section 7 clearly lays down that if the appropriate Government has reason to believe that a person in respect of whom a detention order he has been made has absconded or is concealing himself so that the order cannot be executed, that Government may make a report in writing of the fact to a Magistrate of the First Class having jurisdiction in the place that person ordinarily resides and there upon the provisions of Sections 8283 and 85 of the Code of Criminal Procedure shall apply in respect of the said person. It is not the case of the respondent that the petitioner did not own any property and necessary steps could not be taken against him. Even warrant regarding arrest of the petitioner was not detained from the concerned Judicial Magistrate for ensuring surrender of the detenu to the detention order.

In the case of T.A. Abdul Rahman v. State of Kerala and others, 1989(2) Recent Criminal Reports 459 arrest of the detenu was effected three months after the passing of the order of detention. It was observed that delay in arrest cause doubt on genuineness of the subjective satisfaction of the Detaining Authority leading to inference that detaining authority was not really and genuinely satisfied as regards the necessity of detaining the detenu. In the instant case there was a delay of one year and 8 months in executing the order and no proper effort was made to arrest the petitioner. So placing reliance on the above mentioned authorities I am of the view that there was no genuine apprehension on the part of the Detaining Authority that the petitioner was likely to act in a manner prejudicial by smuggling goods. The detention order is liable to be quashed on this ground.

As a result I accept this petition and set aside the impugned order. The petitioner is ordered to be released forthwith if not required in any other case.