Gura Masih vs State of Punjab

Pritpal Singh, J.

These two habeas corpus petitions (Nos. 1203 and 1204 of 1986) filed by Gura Masih and Bhira Masih respectively, who are brothers, are being disposed of together being interlinked.

The petitioners in these two cases were arrested on July 20, 1984 and 5 kgs. of opium, each was recovered from them. In this connection FIR No. 227 of the same date was registered against them under Section 9 of the Opium Act in Police Station, Lopoke. On investigation it was revealed that they had been indulging in smuggling of goods by crossing IndoPakistan Border from the middle of March to the date of their arrest in July, 1984. Detention orders under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, were passed against them by the State Government. The order against Gura Masih was passed on July 1, 1985 whereas the order against Bhira Masih was issued on June 10, 1985 (Annexure P.1 in both cases). Each of them has assailed the validity of the detention order in the writ petition filed by him.

The main ground on which the detention orders have been challenged is that there was unexplained delay in the disposal of their representations. It is well settled by a large numbers of judgments of the Supreme Court that the delay in the disposal of the representation made by a detenu which has not been sufficiently explained is by itself a sufficient ground for holding that the order of detention illegal.

Taking the case of Bhira Masih first, it is revealed from the return filed by the State of Punjab that his representation dated July 1, 1986 was received by the State on July 2, 1986. Since his case was to be heard by the Advisory Board on July 3, 1986, and 5th and 6th July, 1986 were holidays, the representation was sent to the District Authorities on July 8, 1986. The comments of the District Authorities were received after ten days on July 18, 1986 after a reminder was issued on July 14, 1986. No explanation has been offered as to why the District Authorities took such a long period to send the comments. After the receipt of the comments the representation was examined at various levels till August 14, 1986. The representation remained unattended from 28th to 31st July, 1st, 4th, 7th and 11th to 13th August, 1986. Thereafter the representation was rejected August on 28, 1986 but no action was taken thereon from 18th to 22nd and then on 25th and 26th August, 1986. No explanation has been offered by the State Government in this respect. In similar circumstance the Supreme Court had set aside the detention order in Harish Pahwa v. State of Uttar Pradesh and others, 1982 CLR 65.

Now coming to the case of Gura Masih, his representation dated July 1, 1986 was received by the State Government on the next day. It was sent on July 3, 1986 to the District Authorities to furnish comments. The comments were received on July 21, 1986 after three reminders were sent. In this case too no explanation has been offered as to why the District Authorities had taken more than two weeks to furnish the comments. After the receipt of the comments the representation was examined by the State Government on different dates and it was rejected on August 7, 1986. However, during this period the representation remained unattended on 31st July 1st and 4th August, 1986 and no explanation has been offered in this respect.

In Abdus Sukkur v. State of W.B., AIR 1972 Supreme Court 1915, it was held that the fact that earliest opportunity has to be afforded to the detenu for making a representation against the order of detention necessarily implies that as and when the representation is made it should be dealt with promptly. It was observed that the object underlying. Article 22(5) of the Constitution would be defeated if the authority concerned after giving such an opportunity pays no prompt attention to the representation.

The facts of these case, mentioned above, make it clear that the representations of the detenus have not been dealt with expeditiously. As held in the case of Harish Pahwa (supra), it is the duty of the State to proceed to determine representation of a detenu with utmost expedition, which means that the matter must be taken up for consideration as soon as a representation is received and dealt with continuously until a final decision is taken, unless it is absolutely necessary to wait for some assistance in connection therewith. This is having been done in the present two cases, I have no option but to declare the detention of both the detenus unconstitutional. The impugned detention orders (Annexure P.1 in both cases) are, therefore, revoked and it is directed that the petitioners be set at liberty forthwith.

JUDGMENT accordingly.