Faquir Chand alias Faquiria vs State of Punjab and anr.

J. S. Sekhon, J.

Through this petition for issuing a writ of habeas corpus, Faquir Chad alias Faquiria, detenu, seeks quashment of the detention order Annexure P1 passed by the State Government on 19190 under Sec. 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short referred to as the Act'') with a view to preventing the petitioner from engaging in the purchase transportation, interState import, sale and possession of narcotic drugs. This order of detention was served upon the detenu along with grounds of detention on that very date.

The brief resume of facts as given in the grounds of detention is that on 30.5.1989, at about 1005 p.m. D.S. P. Sukhdev Singh China of Barnala, district Sangrur, received secret information to the effect that Faquir Chand, present petitioner along with his son Madan Lal indulges in the smuggling of poppy husk by bringing it from Uttar Pradesh and that on the night intervening 30 & 3151989, the petitioner alongwith his accomplices Babu Ram, Joginder Singh and aforesaid Madan Lal would be bringing poppy husk from one Sunil Kumar of village and Police Station Faridpur district Barielly (Uttar Pradesh) in truck bearing registration No. CHW 5671. Taking this information as credible a case under Section 15. of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the N.D.P.S. Act'') was registered against the petitioner vide F.I.R. No. 83 at Police Station Dhanaula. Thereafter during the same night, Inspector Jagdish Singh, Incharge of Police Station Dhanaula, along with other police officials held a Nakabandi on a canal bridge in the area of village Kot Duna. At about 330 A.M. a truck came from the side of village Bhikhi and was stopped on suspicion. One of the occupants of the truck managed to escape in the darkness of the night while the petitioner was found sitting on the tool box of the truck and arrested along with Madan Lal, Habans Singh and Joginder Singh. In the meantime aforesaid D.S.P. of Barnala was also called through a wireless message. Thereafter search of the truck yielded the recovery of 60 bags of poppy husk each containing 3450 kilograms of poppy husk. 57 bags of oil cakes were also found lying in the truck. Earlier also on 1691988, ASI Harinder Singh police Station Sunam, district Sangrur, had recovered 480 kilos of poppy husk from truck bearing registration No. HIS 7707 driven by Balbir Singh wherein the petitioner along with Avtar Singh and Babu Singh were also travelling. The petitioner managed to escape on seeing the police party. On account of the above referred prejudicial activities the detaining authority passed the impugned order of detention in order to prevent the petitioner from engaging in the purchase, transport etc. of the narcotic drugs.

The petitioner has challenged the order of his detention on manifold grounds but the learned counsel for the petitioner during the course of arguments had laid stress on four grounds the first being the factum of the petitioner having accompanied the warrant officer to the police station on 1691988 at about 7 p.m. for the release of his coassociate Avtar Singh in a petition filed by him for habeas corpus and the order of Session Judge granting bail were not placed before the before the detaining authority. The delay in passing the detention order from the last prejudicial activity was also stressed in order to show that there was no nexus between the last prejudicial activity and the order of detention. It was also stressed that the authorities had discriminated against the petitioner as no order of such detention was passed against other co associates. The delay in disposing of the representation filed by the petitioner was also pressed into service.

Mr. S. S. Saron, the learned Assistant Advocate General, on the other hand, contended that in view of the provisions of section 6 of the Act even if the earlier incident of possession of the opium is not taken into consideration, the last prejudicial activity would itself be sufficient to sustain the detention order as large quantity of poppy husk was found in possession of the petitioner. He also maintained that the representation was disposed of promptly under the circumstances of the case and that the nexus between the last prejudicial activity and the passing of detention order was not snapped due to passage of four months because the authorities were busy in examining the case thoroughly. The case of the petitioner was contended to be distinguishable from his accomplices.

The petitioner had averred in para 3 of the writ petition as under regarding his having accompanied the warrant officer to the police station for effecting the release of Avtar Singh :

"That in ground No. 2 of the detention order it is mentioned that poppy husk was recovered from truck No. HIS 7707 but the petitioner was not arrested at spot. In fact on 16988 on the writ petition filed by the petitioner in Punjab and Haryana High Court for illegal detention of Avtar Singh, a warrant officer was appointed by the Hon''ble High Court to search the premises of police station, Sunam to know about the whereabouts of Avtar Singh. The petitioner (Faquir Chand) accompanied by the officer had reached police station Suman at 7 p.m. The presence of the petitioner along with warrant officer is mentioned in his report. But the police of police station Sunam showed the petitioner as an accused in case registered at 640 pm. on the same date. It was alleged in that case that the petitioner was travelling in truck No. HIS7707 along with coaccused and was carrying poppy husk with him. On this ground the petitioner was allowed anticipatory bail in the above said case. This order of Sessions Judge has not been placed before the detaining authority so that it could not know as to how the police for ulterior motive implicated the petitioner in the above mentioned case. The writ of Habeas Corpus filed by the petitioner in the Hon''ble Court, the report of the warrant officer and Roznamcha dated 1691988 in which also the warrant officer recorded the presence of the petitioner along with him at 7 a.m. on that date and order of learned Sessions Judge vide which he granted anticipatory bail to the petitioner has neither been placed before the detaining authority nor these facts have been considered by the detaining authority".

In corresponding para 3 of the return filed by Shri. S. K. Bhalla, Under Secretary to Government, Punjab, Home Department it is maintained that at the time of passing the order of detention, all the relevant material was considered by the detaining authority and after reaching a subjective satisfaction, the detention order was passed. Thus, it can be well inferred that in the return, the respondents had not specifically stated that this aspect of the matter was placed before the detaining authority. A copy of the report dated 1991988 of the warrant officer in Cr. W. P. Nos. 1670 and 1671 of 1988, on the other hand, clearly sup ports the abovereferred version of the petitioner. The perusal of the original file of the sponsoring authority and detaining authority reveals that the report of the warrant officer and the order in the abovereferred Criminal Writ Petitions were not placed on the file, what to say of the detaining authority having applied its mind to this aspect of the matter. Consequently, there is no escape but to hold that the incident of possessing poppy husk dated 1691988 could not be taken into consideration for concluding that the petitioner had future propensity of indulging in the possession, transport, smuggling of narcotic substance like poppy husk etc.

However, in view, of the provisions of section 6 of the Act, the abovereferred conclusion would be of no help to the petitioner as the incident of possessing truckload of poppy husk on 31.5.1989 is an independent one than the earlier incident of 1691988, because the legislature had deliberately enacted this section with a view to keeping intact the order of detention even if one or more of the grounds had been found vague, nonexistent, not relevant, not connected or not proximately connected with such person, or invalid for any other reason whatsoever.

The question then arises whether the passage of more than seven month''s time between the last prejudicial activity imputed to the petitioner, i. e. on 3151989 and the passing of the detention order on 1911990 has resulted in snapping the nexus. In this regard the contention of the learned Assistant Advocate General, Punjab, that the authorities sponsored the case only after the petitioner was bailed out on 1781989 in the above referred case appears to be well founded as amended section 37 of the Narcotic Drugs and Psychotropic Substances Act provides that bail for offences punishable under this Act should be granted only if there are requisite grounds for believing that the petitioner is not guilty of such offence and there is no likelihood of committing any such offence while on bail. The perusal of the additional affidavit filed by the District Magistrate, Sangrur under the directions of this Court reveals that the Senior Superintendent of Police, Sangrur vide his letter dated 8.8.1989 had sent the proposal to the District Magistrate for detention of the petitioner. Thereafter, this reference was sent to the District Attorney Sangrur on 1081989 for examination and comments whether it was a fit case or not for passing the detention order under section 3 of the Act. The District Attorney returned the case to the District Magistrate for query regarding the fate of the bail application filed by the petitioner before the High Court and fixed for 1081989. The District Magistrate then asked the Senior Superintendent of Police, Sangrur to send his report in this regard vide letter dated 14.8.1989 issued from the office of the District Magistrate. The Senior Superintendent of Police, Sangrur, vide his letter dated 2581989 intimated the District Magistrate that the petitioner had already been released on bail by the High Court on 17.8.89. Thereafter, the case was again sent to the District Attorney, Sangrur for legal opinion on 2981989 and it was received from the District Attorney, Sangrur on 3081989. Thereafter, the District Magistrate went through the file and found it a fit case for detention of the petitioner under the Act and the case was then transmitted to the Home Secretary to Government, Punjab vide letter date 2791989. Judicial notice can be taken of the fact that due to peculiar law and order problem in Punjab, the office of the District Magistrate is quite busy. Under these circumstances, the pendency of this proposal for about a month before the District Magistrate from 30.8.1989 to 2791989 has been cogently explained.

The return filed by Shri S. K. Bhalla, Under Secretary to Government, Punjab, Home Department reveals that proposal for detention was received in his office on 13101989 and then after due examination at various levels; the case was again referred to the sponsoring authority vide letter dated 19.10.1989 seeking some clarification. The proposal was received back on 29111989 and thereafter it was examined again. The grounds of detention were also prepared in Punjabi and translated into English. The case remained under the examination of State law Department from 8.1.1990 to 11.1.1990 and then the order was passed on 1811990 but the formal order of detention was issued on 1911990. He has further stated that during the period of processing of proposal at State level, there intervened 32 holidays as fully described in para 5 of the return.

No doubt, after the grant of bail on 1791989, the petitioner had not indulged in any prejudicial activity but that in itself is no ground to conclude that there was no necessity to pass the order of detention under section 3 of the Act as the very factum of the recovery of 60 bags each containing 34.5 Kgs of poppy husk while it was being carried in a truck clearly shows that the detenu had indulged in the transporting of poppy husk after due deliberations which, on the one hand, leads to the irresistible conclusion that the petitioner indulges in large scale smuggling of poppy husk and, on the other, that he is wise enough not to indulge in such like activity immediately after his being released on bail. Thus, this single act of transporting narcotic substance, under the circumstances of case, is sufficient to conclude the future propensity of the petitioner in indulging in similar crime. Under these circumstances, I find no force in the contention of the learned counsel for the petitioner that the delay of seven months had resulted in snapping the nexus between the last prejudicial activity and the passing of the detention order, especially when the detention order was passed only four months after the release of the petitioner on bail.

Regarding the delay in disposing of the representation filed by the petitioner, it transpires that as per return of the Superintendent District Jail, Sangrur, the representation was received on 1.2.1990 and it was forwarded to the Inspector General of Intelligence, Punjab, Chandigarh on the next day. i.e. 2.2.1990. A copy of the same was sent to the Secretary to Government Pb, House Department vide another endorsement. Shri S.K. Bhalla, Under Secretary in para 9 of the return has stated that the representation was received in his office on 521990 as 3290 and 421990 happened to be holidays. Then parawise comments of the district authorities were called through teleprinter message on 521990. The comments were received from the District Magistrate on 821991. 9th to 11th February happened to be holidays & the representation was processed and dealt with at various levels from 1221990 to 1621990 and ultimately it was put up for due consideration before the competent authority who rejected the same on 19290. It is also averred that 17th and 18th happened to be holidays and the order of rejection was conveyed to the petitioner on 2021990. Thus, it cannot be said by any stretch of imagination that there was undue delay at any stage.

There is no force in the contention of the learned counsel for the petitioner that due to nondetention of Madan Lal Harbans Singh and Joginder Singh who were also arrested alongwith the petitioner, the detention order passed against the petitioner had resulted in discrimination against him as in para of the return of Respondent No. 1 it is specifically mentioned that the detaining authority felt not satisfied subjectively regarding the passing of detention order against those three persons. No doubt, the details of the facts resulting in not passing the detention order against the above referred three persons are missing from the return, but all the same in view of the facts and circumstances of the case, as the petitioner was found sitting on the tool box of the truck and other occupant Madan La! happened to be the son of the petitioner, it can be well inferred that the petitioner was the kingpin in the act of smuggling poppy husk in large, quantity. Under these circumstances, it cannot be said to be a case of discrimination against the petitioner visavis the abovereferred three persons.

For the foregoing reasons, there being no merit in this petition, it is hereby dismissed.