Gurbachan Singh vs The State of Punjab

S.S. Grewal, J.—This petition under Article 226 of the Constitution of India, relates to quashment of detention order dated 14th March, 1989, Annexure P/1, passed against the petitioner u/s 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (Central Act No. 46 of 1988) (hereinafter referred to as the Act) with a view to prevent the petitioner from indulging in prejudicial activities and engaging in the transporting, import Inter-State and possession of Narcotic drugs.

In brief, facts relevant for the disposal of this petition as emerge from the grounds of detention, Annexure P/2 are that in the first week of March, 1988, the petitioner on the pursuasion of his relation Amar Singh agreed to transport smuggled heroin from Pakistan in his truck from the village of Amar Singh in district Amritsar to Bombay on payment of Rs. 25,000/- per trip as hire charges. In the middle of March, 1988 for this purpose the petitioner reached the village of Amar Singh in his truck No. DIL 5995 driven by Gian Singh his driver and from there smuggled 80 packets of heroin in the said truck and handed over the consignment to one Gul Mohammad Pathan at Bombay, after getting the settled amount. Amar Singh paid to the petitioner Rs. 25000/- and out of the said amount the petitioner gave Rs. 2000/- to Gian Singh driver of the truck.

On the night intervening 22nd and 23rd, April 1988, the petitioner again transported 112 packets of smack in his truck driven by Gian Singh from the village of Amar Singh aforesaid in order to deliver the said consignment at Bombay. On the way the petitioner got down at Jalandhar with two packets of smack, which, he wanted to sell in order to get money for emergency expenses. The petitioner could not sell those packets at Jalandhar, where he learnt that his associates Dial Singh and Amar Singh had already been arrested by the police with 110 packets of smack. Those two packets of smack were subsequently recovered on 25-8-1988 from the house of the petitioner, and, a case u/s 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was registered against him at Police Station, Sadar, Patiala. During the investigation of that case the petitioner is stated to have admitted that he had been engaged in other such like prejudicial activities. On account of the aforesaid illegal activities the order of detention against the present petitioner was passed on 14-3-1989.

The learned counsel for the parties were heard.

4A. Firstly, on behalf of the petitioner, it was submitted that the Act under which the impugned order of detention was passed came into force on 4th July, 1988 whereas the last prejudicial activity is alleged to have been committed by the petitioner in April, 1988, and, as such the impugned order of detention cannot be legally sustained. It was further submitted that the detaining authority could not invoke the provisions of the Act retrospectively, and, such conduct on the part of the detaining authority further shows its non-application of mind.

Reliance in this respect was placed on Single Bench authority of this Court in Amar Singh v. Secretary to Govt. Punjab 1990 (1) Recent Cri 518 wherein dealing with the retrospective operation of the Act it was observed as under at Page 521:--

"It does not stand to reason as to how could the detaining authority invoke the provisions of this Act while ordering detention of the petitioner. It also indicates want of application of mind on the part of the detaining authority to the facts and circumstances obtaining in the present case and, therefore, invalidates the detention order."

The argument advanced by the learned counsel for the petitioner that no prejudicial activity is attributed to the petitioner after coming into force of the Act is factually incorrect, inasmuch as the recovery of two packets of smack was effected from the residential house of the petitioner on 25-8-1988 much after coming into force of the Act. It is significant to note that the prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988, has already been promulgated by the President of India on 4th June, 1988 which had immediately come into force. The aforesaid authority in Amar Singh''s case 1990 1 Rec Cri R 518 (supra) is thus clearly distinguishable and is not applicable to the facts of the case in hand inasmuch, as the detaining authority had duly considered the prejudicial activities of the petitioner referred to above, including the one concerning illegal transport of smack in the third week of April, 1988, or, thereabout.

It is true that in the grounds of detention there is reference to the illegal activity on the part of the petitioner in transporting 80 packets of heroin in the first week of March, 1988 in his truck from Amritsar to Bombay and handing over that consignment to Gul Mohammad Pathan, on receipt of Rupees 80,000/- out of which the petitioner is stated to have been paid Rs. 25,000/- but the fact remains that the said act was illegal, and punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985. Thus, there is no question of retrospective operation of Central Act No. 46 of 1988 as far as facts and circumstances of the present case are concerned. Nor, it can be said to be a case of non-application of mind on the part of the detaining authority before coming to the conclusion that the petitioner had been indulging in prejudicial activities concerning possession and Inter-State transportation of Narcotic drugs. Thus, the order of detention passed against the petitioner is not liable to be quashed on this score.

It was next submitted on behalf of the petitioner that the impugned order of detention was passed on 14-3-1989 after more than six months of the arrest of the petitioner on 25-8-1988 u/s 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and there is no proximity, or nexus between the last prejudicial activity and the passing of the impugned order of detention against the petitioner. There is no hard and fast rule as to what is the length of time, which, may be considered sufficient to snap nexus between incidents relating to prejudicial activity, and, the order of detention.

I find support in my view from authority of the apex Court in Shiv Ratan Makim Vs. Union of India (UOI) and Others, , wherein it was held that it is no doubt true that where an unreasonably long period has elapsed between the date of the incident and the date of the order of detention, an inference may legitimately be drawn, that there is no nexus between the incident and the order of detention and the order of detention may be liable to be struck down as invalid. But there can be no hard and fast rule as to what is the length of time, which, should be regarded sufficient to snap the nexus between the incident and the order of detention.

From the perusal of the grounds of detention Annexure P/2, in the instant case, it is quite apparent that the information about the other prejudicial activities of the petitioner, referred to above, came to light during the investigation of the aforesaid criminal case for recovery of two packets of smack after his arrest on 25-8-1988. The petitioner was released on bail in the said case on 27-9-1988. Thereafter, according to the explanation given by the State, the investigation of the case consumed quite some time as the petitioner and his associates were interrogated and their antecedents were got verified. After that, the material collected was processed through Senior Superintendent of Patiala and the case was sent to the District Magistrate on 7-12-1988. The case was again processed, examined and on 26-12-1988 District Magistrate sponsored the proposal to the State Government for the detention of the petitioner. This proposal was examined at various levels and after seeking clarification from the sponsoring authority, the case was then examined by the State Law Department and same was put up before the competent authority, who, after due application of mind ordered the detention of the petitioner on 9-3-1989, and, formal order of detention was issued on 14-3-1989. It is also stated in the return filed by the State that during this period there were 25 holidays. In these circumstances, it cannot but be said that the impugned order of detention was passed without any unreasonably long or unexplained delay. The impugned order of detention is thus not liable to be quashed on this ground.

I find support in my view from the authority of the apex Court in Kamal Pramanik Vs. The State of West Bengal, , wherein the detenu''s complicity in the criminal cases instituted on the basis of the incidents having taken place in the months of June, August and September, 1971 stated in the grounds of detention came to light during the course of the investigation. Since the detenu was a dangerous person, witnesses were afraid to depose against him. He was discharged in the cases and freed from custody on 11-7-1972. He was again taken into custody on 7-9-1972 in pursuance to the order of detention passed on 28-8-1972. It was held that this sufficiently explained the reason for passing the detention order about a year after the happening of the alleged incidents. The detention order was necessitated because the criminal cases could not proceed, and, the detenu was discharged. There was no unreasonable delay between the passing of the detention order and his release in the criminal cases.

It was further submitted on behalf of the petitioner that the representation filed by the petitioner challenging the validity of his detention was not considered expeditiously as contemplated under Article 22(5) of the Constitution of India, and, there was undue delay both in deciding the representation as well as communicating the same to the petitioner. According to the return filed by the State, the representation of the petitioner was sent by the Superintendent Central Jail, Patiala, on 27-4-1989 and the same was received in the department of Home Affairs and Justice on the same day. Comments of the sponsoring authority were called on the same day. The said authority after verifying the facts and making necessary enquiries sent the comments, which, were received in the department of Home Affairs and Justice on 4-5-1989. In the light of the comments, the representation was processed and dealt with at various levels and ultimately put up before the competent authority, who, after due consideration rejected the same on 11-5-1989 and the rejection order was duly conveyed to the petitioner through Superintendent Central Jail, Patiala, on 15-5-1989. It is also mentioned in the return that 6th and 7th May, 1989 were holidays.

From the explanation furnished on behalf of the State, in the instant case, it is quite apparent that there is no inordinate, undue, or, unexplained delay in considering the representation of the petitioner by the competent authority. Nor, there is any negligence, or, delay on the part of the competent authority in communicating the order of rejection of the representation to the petitioner through the jail authorities.

I find support on this point from the authority in Rama Dhondu Borde v. Shri V. K. Saraf Commissioners of Police 1989 CAR 213 (SC), wherein the apex Court has observed that there is no prescribed period either under the provisions of the Constitutional or under the concerned detention law within which the representation should be dealt with. The use of the word "as soon as may be" occurring in Article 22(5) of the Constitution reflects that the representation should be expeditiously considered and diposed of with due promptitute and diligence and with a sense of urgency, and, without avoidable delay. What is reasonable dispatch depends on the facts and circumstances of each case, no hard and fast rule can be laid down in that regard. However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long, and, the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention.

There has been large scale increase of smuggling of heroin, smack and other Narcotic Drugs from across the border into our country in recent times. This is certainly hazardous to public health, particularly, the younger generation which may be easily allured in addiction of such injuries drugs for their life time. In order to solve the problems of smuggling and addiction of such drugs and also to provide deterrent punishment for such like offences, initially the legislature in its wisdom passed Narcotic Drugs and Psycho-tropic Substances Act, 1985, which was subsequently amended by Central Act No. 46 of 1988. Instances of illegal activities of smuggling heroin in large quantity, on the part of the petitioner referred to above, clearly indicate that the same were inter-linked, continuous in character and naturally the same would have to be curbed with a heavy hand. All these circumstances taken together reveal that there was compelling necessity for the detaining authority to pass the impugned order of detention which cannot, in any way be termed as punitive, or, illegal. The impugned order of detention has thus rightly been passed with a view to prevent has thus rightly been passed with a view to prevent the petitioner from smuggling or engaging in transporting or concealing Narcotic Drugs such as heroin, smack and other drugs, as well as from indulging in such prejudicial activities in future.

For the foregoing reasons, the impugned order of detention, Annexure P/1, does not suffer from any legal infirmity and the same is not liable to be quashed. This petition is accordingly dismissed.