Dilshad vs State of Punjab

V.K. Bali, J. (Oral)

Dilshad son of Shri Ishaq through present criminal writ filed by him under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure seeks quashing of detention order dated 18.9.1991, Annexure P1, passed by respondent State of Punjab under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter to be referred to as the COFEPOSA Act). The facts on which the relief aforesaid rests, need to be enumerated.

Petitioner is presently confined in Central Jail, Patiala and the impugned order, Annexure P1, was passed by the State of Punjab on 18.9.1991 under Subsection (1) of Section 3 of COFEPOSA Act. In grounds of detention, Annexure P2, it is mentioned that on 21.2.1991, petitioner, holder of Indian Passport No. C394595, entered India from Pakistan through Land Customs Station, Attari Road. After completion of health and immigration formalities, he presented his baggage for customs clearance. The Baggage Officer on duty asked him to declare the contents of his baggage which consisted of three packages. He was also asked by the Baggage Officer to declare whether he was carrying any gold or silver either in his baggage or on his person. He declared 30 metres of textile, wearing apparels and eatables. However, his baggage was subjected to examination and be was found to have goods as per his declaration. In the eatables, he had two packets of sweets. While the Baggage Officer was examining the packets of sweets, petitioner showed some signs of nervousness. On this, the Baggage Officer got suspicious and examined the sweets. It was found that some glittering substance in the form of powder was fixed on the sweets. Thereafter, the sweets were given for examination to the goldsmith, who was incidently present in the hall in connection with gold seizure from four lady passengers. He examined the sweets and declared that sweets contained gold in fine dust powder form. He further stated that gold powder could be separated from the sweets by Chemical process. Thereafter, the instruments and Chemical acids needed to separate the gold from sweets were brought and during the said course of process of chemical, conducted in the presence of petitioner and two other witnesses, the goldsmith converted the extracted gold powder into four flats rectangular bars. As per goldsmith''s certificate, the said four flats rectangular gold bars were of 24 carat purity weighing 483 gms. and valued at Rs. 1,67,601/. It is on the grounds aforesaid that detention order, Annexure P1, was passed.

The petitioner has challenged the detention order on variety of grounds but the one which is strenuously pressed by Mr. Rakkar, learned Senior Advocate, appearing on behalf of the petitioner is that there has been an unexplained delay in execution of the detention order.

The undisputed facts of the case reveal that recovery of incriminating articles was made from the petitioner on 21.2.1991 whereas the order of detention was passed on 18.9.1994 and ultimately it was executed on 10.8.1994. There is, thus, delay of more than 21/2 years in execution of detention order. It is conceded proposition of law that if there has been unexplained delay in executing the detention order, the same in itself is sufficient ground to quash the detention order. Mr. Rakkar, however, relies on a Supreme Court Judgment in P.U. Iqbal v. Union of India and others, 1992 Criminal Appeal Reports 53.

All that has been stated in the written statement while explaining the delay is that petitioner had not been served the detention order and grounds of detention for about two and half years as strenuous efforts were being made to serve the detention order on him. However, he was playing hide and seek with the police and intentionally evaded the execution of detention order. As a matter of fact the petitioner evaded execution of detention order and for that played hide and seek with the police which incapacitated the State to execute the detention order. It is further pleaded that petitioner could not be allowed to take benefit of his own wrongs.

It is further pleaded in para No. 9 of the written statement that the proceedings under Section 7 of the COFEPOSA Act were contemplated when petitioner was actually arrested and detention order served upon him.

From the facts as have been narrated above, it is, thus, crystal clear that despite the fact that petitioner was fugitive and was trying to evade the dragnet of law, respondents took no action in the matter i.e. issuing of an order under Section 7(1)(b) of the COFEPOSA Act which required the Chief Judicial Magistrate to proceed against the petitioner under Section 7(1)(a) of the said Act. Not only that, no proceedings were initiated against him under Sections 82 and 83 of the Code of Criminal Procedure.

The facts of P.U. Iqbal''s case (supra) would reveal that as per the case of respondents therein the detention order dated 21.8.1989 was received by the Superintendent of Police, Thrissur on 1.9.1989 who in turn directed the Circle Inspector of Police, Guruvayur to apprehend the warrantee and that the Circle Inspector of Police reported to the Superintendent of Police, Thrissur on 16th September, 2nd October, 13th November, 1989 and 5th January, 1990 that the warrantee namely the detenu was reportedly working at Bombay and the chances of his visit to his native place were awaited. Not being satisfied with the reports of the Circle Inspector of Police, the S.P. by his letter dated 24.11.1989 directed the Circle Inspector of Police to arrange to secure the detenu and execute the detention order at Bombay with the assistance of the local police. Despite repeated orders of the SP dated 31st January, 12th and 19th February, 14th and 22nd March, 1990 directing the Circle Inspector to send the reports about the compliance of his direction in executing the warrant, the Inspector sent a reply on 30.3.1990 to the SP informing that the police officers were being sent to Bombay to arrest the warrantee i.e. the detenu. On 2.4.1990 the SP asked for report about the stage of the matter from the Inspector of Police who thereupon on 20.5.1990 reported to the SP that the police party could not arrest the warrantee and execute the warrant. Then on 14.5.1990, the Government issued an order under Section 7(1)(b) of the Act and requested the Chief Judicial Magistrate, Thrissur to take action under Section 7(1)(a) of the Act. On 9.8.1990, the Inspector of Police arrested the petitioner from Kandanisseri and reported the fact to the Superintendent of Police, who in turn informed the Government and the Chief Judicial Magistrate about the execution of the warrant on 10.8.1990.

From the facts narrated above, it is clear that the detention order in the said case was executed after seven months. The facts further reveal that the complaint was filed under Section 7(1)(b) of the COFEPOSA Act. Even on the facts, as have been quoted above, the Supreme Court observed as follows :

"Reverting to the case on hand, as we have pointed out ibid, there has been nearly 7 months'' delay at the hands of the Circle Inspector in executing the warrant and a total period of one year delay in securing the detenu and serving the order from the date of the passing of the detention order by the detaining authority, which delay is unreasonable and stands unexplained. In our opinion, the lucid pathetic attitude and the oblivious and contumacious conduct of the Inspector in not acting with greater promptitude in securing the detenu but conspicuously sleeping over the matter welling nearly 7 months have rendered the order of detention invalid. The explanation offered by the second respondent and the police officers that the detenu was a fugitive, eluding the dragnet of the detention order is too incredulous to be swallowed. Further, no Court will implicitly accept this kind of incredible explanation."

Observations of the Supreme Court in the case aforesaid apply to the present case. Infact, herein the respondent State delayed the matter i.e. execution of the warrants of arrest of petitioner for nearly 21/2 years and the action under the COFEPOSA Act was only contemplated just before the petitioner was arrested. No concrete steps has been taken in the matter to arrest the petitioner. Recently on 17.1.1995, following the dictum of Supreme Court in P.U. Iqbal''s case (supra) in quite similar circumstances, I allowed Crl. Writ petition No. 588 of 1994 (Baldev Singh v. State of Punjab). This petition has, thus, merit and deserves to be allowed on the ground that there has been unexplained delay in execution of detention order against the petitioner. Consequently, order, Annexure P1, is quashed and petitioner is ordered to be set at liberty forthwith.