Gayur Ahmed vs The State of Punjab and Others

V.K. Jhanji, J.—This order shall dispose of Criminal Writ Petitions No. 371, 396 and 494 of 1994. The facts are taken from Cr.W.P. No. 371 of 1994.

All these writ petitions have been filed under Article 226 of the Constitution of India, read with Section 482, Code of Criminal Procedure, for quashing of detention order (Annexure P-1 to the writ petitions) passed against the petitioners u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (in short, the 1974 Act).

In brief, the facts are that on 11.7.1992, the Customs Staff of Land Customs Station, Attari Rail rummaged the Lahore-Amritsar Samjhota Express Train which arrived from Lahore (Pakistan). During the course of rummaging, the Customs Staff noticed six green colour cloth bundles containing some heavy material lying in the ceiling of the toilet (Latrine) of Bogie No. 5692, which were taken into possession. The said six bundles, on opening, were found to contain 32.795 kg. of silver bullion valuing Rs. 2,36,124/-. The said silver bullion was seized u/s 110 of the Customs Act, 1962, on a reasonable belief that the same is liable to confiscation under Sections 111(d) and 118 of the Customs Act as it was illegally imported from Pakistan in contravention of the provisions of Import Control Order. The seized silver so recovered was apparently placed there so that it could be retrieved at some opportune time by some persons at Amritsar railway station where the train halts for the night. In order to nab such person, the Customs staff kept surveillance at platform No. 5, Railway station, Amritsar. At around 17.40 hours, one person entered the bogie and immediately came out, whereafter he went upstairs on the first bridge on platform No. 5 and talked something with two other persons at the bridge. Then one out of the said two persons came down, entered the bogie and went inside the toilet from where the Customs staff had recovered the silver at Attari railway station. The Customs staff suspecting that these were the persons who had come to retrieve the silver, entered the bogie and nabbed them. The persons arrested were the present petitioners namely Gayur Ahmed, Mohd. Rais and Mohd. Naseem. In their statements made u/s 108 of the Customs Act before the Superintendent (Customs), they admitted that they had gone to platform No. 5 of railway station, Amritsar to retrieve consignment of silver which was to come from Lahore, sent by one Khursheed duly concealed in the ceiling of latrine (toilet). They further stated that the said silver was to be concealed by them in boxes of fruits for being carried to Muzaffarnagar and sold to any Saraf in Sarafa Bazar at Muzaffarnagar. They (petitioners) were arrested on 11.7.1992 and produced before the Duty Magistrate who remanded them for two days in Customs custody, whereafter they were remanded in Judicial custody. Thereafter, on 14.8.1992, they were ordered to be released on bail by the Sessions Judge, Amritsar, on furnishing bail bonds in the sum of Rs. 10,000/-and cash deposits of the amount of surety bonds to the satisfaction of Chief Judicial Magistrate, Amritsar. Consequently, they were released on bail on 17.8.1992. In view of the above activity, order u/s 3(1) of the 1974 Act was passed against the petitioners. The same was passed against Gayur Ahmed and Mohd. Rais on 4.3.1993 and against Mohd. Naseem on 5.1.1993. Petitioners were served with the detention order and the grounds of detention. They have alleged that they made representation on 12.3.1994 to the detaining authority against their detention, but it has been stated in the reply filed to the petition that the representations were made on 22.3.1994. Be that, as it may, the representations were received by the detaining Authority and the same were rejected by the detaining Authority in the case of Gayur Ahmed on 5.5.1994, in the case of Mohd. Rais on 6.5.1994 and Mohd. Naseem on 18.4.1994. Petitioners are challenging the detention order inter alia on the following grounds:

(i) that the order of detention is based on a solitary incident;

(ii) that there has been long and undue delay in passing the order of detention from the date of activity, besides undue and unexplained delay in serving/executing the order of detention.

Respondents No. 1 to 3 have filed separate written statements. Respondent No. 1, i.e. Detaining Authority has explained in para No. 6(v) that the time taken from the date of sponsoring the proposal for detention which was made on 15.9.1992 and passing order of detention which in the case of two of the petitioners was passed on 4.3.1993 and in the case of remaining third petitioner, it was passed on 5.1.1993. In para 6(vi), explanation has been given in regard to delay in executing the order of detention. Para 6(vi) is as follows:

(vi). That the contention of the petitioners that the detention order was passed against him on 3.3.1993 but the same was served upon the petitioner on 14.2.1994, inspite of the fact that the petitioner was on bail, is wrong and misconceived and hence denied. In fact the petitioner was playing hide and seek with the police and intentionally evading the execution of the detention order, which incapacitated the State to execute the detention order. The petitioner cannot be allowed to take advantage of his own wrong. The gap period between the passing of detention order till date cannot give any benefit to the petitioner. The circumstances warranting detention of petitioner are fully justified and are in no way punitive. The manner of playing hide and seek by the petitioner with the police aggravates the circumstances warranting the execution of the prevention order. So in reply to the assertion made in this sub-para of the petition, it is submitted that there was no delay on the part of the Answering Respondent for execution of the detention order. The act of the petitioner of playing hide and seek in order to avoid the execution of the detention order indicates the continued indulgence of the petitioner in the nefarious activities because of which detention order was passed. The said order is definitely a preventive measure.

Learned Counsel for the petitioners contended that delay of 11 months, in the case of two petitioners, and delay of 13 months, in the case of remaining one petitioner, in executing the order of detention is not only inordinate and unreasonable one, but also stands unexplained. According to the counsel, order of detention deserves to be set aside on this ground alone. Mr. Bhanot, DAG Punjab, appearing for respondent No. 1, has contended that petitioners were playing hide and seek with the police and intentionally evading the execution of detention order and thus, cannot be allowed to take advantage of their own wrong.

After hearing the learned Counsel for the parties, I am of the view that the contention of Mr. Bhanot cannot be accepted. It has specifically been alleged by the petitioners in para 6(vi) in the petition that petitioners were very much present at their residential addresses and attending Court on each and every date, i.e. on 12.9.1992, 22.10.1992, 21.12.1992, 10.3.1993, 10.7.1993, 21.9.1993, 9.11.1993 and 4.2.1994. The petitioners have also stated that they have been appearing before the Customs Authorities on every date. The averment of the petitioners that they had been appearing before the Court on various dates, as also before the Customs Authority, has not been denied by the detaining Authority as is clear from the reply which has been reproduced in the earlier part of this judgment. It appears that no serious efforts were made by the Arresting Officer. When there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining Authority leading to a legitimate inference that the detaining Authority was not really and genuinely satisfied as regards the necessity for detaining the detenue with a view to preventing him from indulging in smuggling activities. In case reported as K.P.M. Basheer v. State of Karnataka and Anr. 1992 CAR 113 (SC) , in similar circumstances, the order of detention was quashed and it was held that the order of detention cannot be sustained since the live and proximate link between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the detenu therein. Similarly in Harnek Singh Vs. State of Punjab and Others, , a case under the COFEPOSA Act, the detention was quashed on the ground of delay in executing the detention order. In the case before the Supreme Court, the detenues had been appearing in Court on all dates of hearing fixed by the Magistrate, but no effort was made to arrest them and in those circumstances, it was held that detention took the character of punitive action rather than preventive one. No judgment to the contrary has been cited by the counsel for the respondents. It may also be noticed at this stage that date of occurrence alleged against the petitioners is of July, 1992 and petitioners were ordered to be released on bail on 14.8.1992, but proposal for detention was made on 15.9.1992, i.e., after they were released on bail. The detaining Authority again took time in passing the detention order, that is to say, in two cases the detention order was passed on 4.3.1993 and in the third one, detention order was passed on 5.1.1993, meaning thereby that from 11.7.1992, the date of arrest of the petitioners, the detaining Authority took almost seven months and 23 days in two cases and 5� months in the third one, in passing the detention order. More so, grounds of detention show that the smuggling activity alleged against the petitioners is only one, i.e. with which we are presently concerned, and no other.

Consequently, the petitions, i.e. Criminal Writ Petitions No. 371, 396 and 494 shall stand allowed and detention order (Annexure P-1 in all three petitions) is quashed, with a further direction to the respondents to set the detenues (petitioners) at liberty forthwith in case they are not required in any other case. No costs.