Gurmej Singh alias Wasakha Singh vs State of Punjab

Ujagar Singh, J.

The petitioner challenged the detention order dated 17.11.1988 (Annexure P1), grounds of detention (Annexure P2) and the confirmation order dated 10.3.1989 on various grounds.

The detention order Annexure P1 refers to the petitioner indulging in smuggling goods and engaging in transporting, concealing or keeping smuggled goods and on account of such activities, the petitioner had been directed to be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 vide order dated 31.8.1988 and was lodged in the Central jail, Ferozepur. This order was later on revoked vide order dated 17.11.1988 on which date Annexure P1 had been passed on the ground that the petitioner had been engaging in concealment and import into India of narcotic drugs and on account of these activities, his detention has been considered to be necessary with a view to preventing him from further acting in the aforesaid manner in future. The order further says that the petitioner is already in custody and has been taking steps to get himself released from the custody, as per information from reliable resource and there was every likelihood of his being released from custody. The order further mentions that in the event of his release from the custody, the detenu is likely to resume the said activities and thus, there is compelling necessity to pass this order.

The grounds of detention of the petitioner remain the same, as in Annexure P2. One of the grounds is that probably from the month of April, 1987 to May, 1987, the detenu prepared Khazan Singh and some others to act as carriers at the asking of Puran Singh and one Mukhtiar Singh for smuggling Heroin from Pakistan. The second ground is that on 24.1.1988 said Mukhtiar Singh and Puran Singh came to his house and asked him to accompany them to Pakistan for which he would be paid Rs. 2,000/ per trip. After some hesitation, the detenu agreed and on 25.1.1988 at about 9 p.m., Mukhtiar Singh and Puran Singh came to his house and at that time, the three of them crossed over to Pakistan at about 10 p.m., and reached the house of Nathu of village Noom Bhaini, PS Mandi Hira Singh, District Kasur. The detenu was introduced to Nathu and thereafter, Mukhtiar Singh had some talk with Nathu and handed over the bag containing Indian currency to him, who, in return, handed over 2 small bags, each containing 15 packets of Heroin. One bag out of them was given to the detenu and the second to Puran Singh with a promise to pay Rs. 2,000/ to the detenu. On the next day, Mukhtiar Singh and Puran Singh came to detenu''s house and he handed over the bags to Mukhtiar Singh and paid Rs. 2,000/.

The third ground for detention is that on 22.2.1988 at about 8 p.m. again, Mukhtiar Singh and Puran Singh came to his house and had a similar talk and on the next day, i.e. 23.2.1988 to about 9 p.m., both of them came to the detenu''s house and thereafter, all the three of them crossed over to Pakistan; met the aforesaid Nathu Muslim who gave 10 packets of Heroin to Mukhtiar Singh in 2 bags, one was given to the detenu and the other to Puran Singh. Thereafter these bags were handed over to Mukhtiar Singh and the detenu was paid Rs. 2,000/. On 1.3.1988 the detenu presented himself before Jalalabad Police and he was arrested in First Information Report 48 dated 14.2.1988, under Sections 411/416 etc. of the IPC.

The grounds of detention make it clear that there was some information about the detenu having prepared Khazan Singh and others from the month of April, 1987 to May, 1987 and to make these allegations no document much less some FIR in respect of such activities has been referred to. Similarly, with regard to the second ground, no document much less the FIR for this activity has been disclosed. So far as the third ground is concerned, the occurrence is alleged to have taken place on 23.2.1988, but the detenu was arrested in case FIR 48 dated 14.2.1988.

In reply to the petition, by way of affidavit of Shri S.K. Bhall. Under Secretary to Government, Punjab, Department of Home Affairs and Justice, on behalf of the respondent, it is mentioned that the petitioner made a confessional statement voluntarily before Judicial Magistrate Ist Class, Amritsar. It is also repeated in the reply that the petitioner was no doubt in judicial custody, but he was taking effective steps to get himself released from judicial custody and as such, there were compelling reasons with a view to preventing him from indulging in prejudicial activities.

The learned Counsel for the petitioner mainly relied upon the allegation that the petitioner was alreasted on 1.3.1988 and since then, he has been in jail. It has also been argued that the detaining authority has not spelt out any special reasons for the detention of the petitioner, nor has it been shown that there is any circumstance warranting the detention of the petitioner for apprehension that in the event of the release of the petitioner from custody, he was likely to indulge in smuggling activities. It has also been argued by the learned Counsel that the alleged activities were remote and had no nexus with the order or detention. There was no compelling circumstance or reason to apprehend the indulgence in smuggling activities and there are also no compelling reasons apparent from the detention order that the petitioner, if released on bail, would again indulge in the smuggling activities. The petitioner, even according to the respondent, was not furnished with a copy of the alleged confessional statement, as the same is not mentioned in Annexure RII/T.

The learned Counsel for the State has argued that the detention order is preferctly legal and based on sound information. He has cited case of Shiv Rattan Makim v. Union of India, 1986(1) SC 610 : 1986(1) Recent Criminal Reports 470 to support his argument that no hard and fast rules as to what length of time snaps nexus between incident and order of detention. With this authority, he also supports the contention that an incident may be sufficient for passing the detention order in spite of the fact that criminal prosecution is not envisaged.

I have heard the arguments and have also gone through the file.

The main point for consideration in this case in that the petitioner has been in custody since 1.3.1988 and there is nothing to show that he ever moved an application for bail or in the circumstances of case, he was likely to be released on bail due to some technicalities. In these circumstances, whether the detention order can or cannot be sustained on the ground that the detaining authority was of the view the petitioner was to be prevented from further acting in the alleged activities. The respondent has not even revealed as to what steps were taken by the petitioner to get himself released from custody and on what particular information and from what reliable sources, the detaining authority felt satisfied that there was every likelihood of the petitioner being released from custody and in the event of his release from custody, he was likely to resume the alleged activities. The learned Counsel for the petitioner has referred to cases of Smt. Shashi Aggarwal v. State of U.P., 1988(1) Recent Criminal Reports 579 (SC) : 1988(1) SVLR (Crl.) 1 ; Vijay Kumar v. Union of India, 1988(1) SVLR (Cr.) 143 : 1988(1) Recent Criminal Reports 602 and Abdul Razak Abdul Wahab Sheikh v. S.N. Sinha, 1989(1) SVLR (Cr.) 146 in support of his arguments.

In Shashi Aggarwal''s case (supra), the husband of the petitioner was detained and the order against him was that he be detained in general category in District Meerut Jail, in custody of the Superintendent Jail, under Section 3(2) of the National Security Act, 1980. The offences are said to have been committed by him on 19.5.1987. Two of the offences were committed at 9 a.m. on that date and two other offences at 9.30 a.m. and the 5th between 9.30 a.m. to 1 p.m. on that date. Ultimately, in each of the grounds of detention the following is mentioned as :

"Due to your above all acts, there broke out communical riots causing heavy loss to properties and lives of the people and your this ill act has spread fear and terror in the general public of Meerut City. In this manner, you have committed such an act which is against public law and order."

After discussing the questions involved in such cases, the Apex court has summarised the principles as follows :

Section 3 of the National Security Act does not preclude the authority from naking an order of detention against a person while he is in custody or in jail, but the relevant facts in connection with the making of the order would make all the difference in every case. The validity of the order of detention has to be judged in every individual case on its own facts. There must be material apparently disclosed by the detaining authority in each case that the person against whom an order of preventive detention is being made is already under custody and yet for compelling reasons, his preventive detention is necessary.

Every citizen in this country has the right to have resource to law. He has the right to move the Court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the Court for bail by clamping an order of detention. The possibility of the court granting bail may not be sufficient.

Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order. That has been made clear in Binod Singh v. District Magistrate, Dhanbad, 1986(4) SCC 416 at 421), where it was observed :

"A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens."

Ultimately, their Lordships found no material apparent on the record that the detenu, if enlarged on bail, is likely to commit activities alleged against him and it was held that the detention order had been made merely on the ground that the petitioner was trying to come out of the jail and there was every possibility of his being bailed out. This ground was held to be not justified. The detention order was, thus, quashed.

In Vijay Kumar''s case (supra), the following observations were made :

"On a conspectus of the above decision, we are of the view that when a detenu is already under detention for an offence, whether bailable or nonbailable, the detaining authority will take into his consideration the fact of detention of the detenu and, as laid down in Shashi Aggarwal''s case (supra), there must be compelling reasons to justify his preventive detention in spite of the fact that he is already under detention on a charge of a criminal offence. There must be material for such compelling reasons and the material or compelling reasons must appear from the grounds of detention that will be communicated to the detenu. In other words, two facts must appear from the grounds of detention, namely, (1) awareness of the detaining authority of the fact that the detenu is already in detention and; (2) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention."

In Abdul Razak''s case (supra), the Apex court made the following observations :

"On a consideration of the aforesaid decisions the principle that emerges is that there must be awareness in the mind of the detaining authority that the detenu is in custody at the time of service of the order of detention on him and cogent relevant materials and fresh factors have been disclosed which necessitate the making of an order of detention. In this case, the detenu was in jail custody in connection with a criminal case and the order of detention was served on him in jail. It is also evident that the application for bail filed by the detenu was rejected by the Designated Court on 13th May, 1988. It is also not disputed that thereafter no application for bail was made for release of the detenu before the order of detention was served on him 23rd May, 1988. It appears that in the grounds of detention there is a statement that at present you are in jail yet "there are full possibilities that you may be released on bail in this office also." This statement clearly shows that the detaining authority was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the Designated Court and as such the possibility of his coming out on bail is nonexistent. This fact of nonawareness of the detaining authority in our opinion, clearly establishes that the subjective satisfaction was not arrived at by the detaining authority on consideration of relevant materials :"

The detention order in that case was also quashed.

Shiv Rattan Makim''s case, 1986(1) Recent Criminal reports 470, does not render much help to the case of the respondentState.

In the present case the activity alleged against the petitioner pertains to period between April, 1987 to May, 1987 from 24.1.1988 to 25.1.1988 and for 2 days, i.e. 22.2.1988 and 23.2.1988. All the same the petitioner was arrested in case FIR 48 dated 14.2.1988. These activities had become stale on 31.8.1988 when the detention order and grounds of detention (Annexure P2) were passed. There was no nexus left between the same. The petitioner was already in custody since 1.3.1988 and there is nothing on the record to show that he ever attempted to get himself bailed out. There is also nothing on the record to show, what were the compelling circumstances to pass the detention order. In any case nothing has been brought on the record, as to on what ground the detaining authority felt satisfied about the steps having been taken by the petitioner to get himself released on bail and also to show that were the compelling grounds to apprehend that the petitioner would continue to resume the activities after his release on bail. In Shiv Rattan''s case (supra) the Apex Court, dealing with a case under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974) held as under :

"The last ground urged on behalf of the petitioner is also equally without substance. The contention of the petitioner was that criminal prosecution cannot be circumvented or shortcircuited by ready resort to preventive detention and the power of detention cannot be used to subvert, supplant or substantiate the punitive law of the land. The petitioner urged that no material has been disclosed by the respondents to establish the existence of any exceptional reasons which would justify resources to preventive detention in the present case such as witnesses being afraid to depose against the detenu in Court or other genuine difficulties in bringing the culprits to book in a criminal Court under the ordinary law of the land and in the absence of such reasons before the detaining authority, it was not competent to the detaining authority to make the order of detention bypassing the criminal prosecution. This argument completely overlooks the fact that the object of making an order of detention is preventive while the object of a criminal prosecution is punitive. Even if a criminal prosecution fails and an order of detention is then made, it would not invalidate the order of detention, because as point doubt by this Court in Mohd. Subrati v. State of West Bengal, 1973(3) SCC 250 : AIR 1973 SC 207; "the purpose of preventive detention being different from conviction and punishment and subjective satisfaction being necessary in the former while proof beyond reasonable doubt being necessary in the latter", the order of detention would not be bad merely because the criminal prosecution has failed. It was pointed out by this Court in that case that "the Act creates in the authority concerned a new jurisdiction to make orders for preventive detention on their subjective satisfaction on grounds of suspicion of commission in future of acts prejudicial to the community in general. This jurisdiction is different from that of judicial trial in Courts for offences and of judicial corders for prevention of offences. Even unsuccessful judicial trial or proceeding would therefore not operate as a bar to a detention order or render it mala fide." If the failure of the criminal prosecution can be no bar to the making of an order of detention, a fortiorari the mere fact that a criminal prosecution can be instituted cannot operate as a bar against the making of an order of detention. If an order of detention is made only in order to bypass a criminal prosecution which may be irksome because of the inconvenience of proving guilt in a court of law, it would certainly be an abuse of the power of preventive detention and the order of detention would be bad. But if the object of making the order of detention is to prevent the commission in future of activities injurious to the community, it would be a perfectly legitimate exercise of power to make the order of detention. The Court would have to consider all the facts and circumstances of the case in order to determine on which side of the line the order of detention falls. Here the petitioner was caught in the act of smuggling gold and the circumstances in which the gold was being smuggled as also the facts set out in the written statement of the petitioner clearly indicate that the petitioner was engaged in the activity of smuggling gold and if that be so, it is possible to say that the order of detention was passed by the second respondent with a view to subverting, supplanting or substituting the criminal law of the land. The order of detention was passed plainly and indubitably with a view to preventing the petitioner from continuing the activity of smuggling and it was therefore, a perfectly valid order of detention."

In view of the above judgment, it has to be seen in every case, whether the intention of the detaining authority was to bypass the criminal prosecution or in the circumstances of every case, the detaining authority may reply upon circumstances other than the case for which the prosecution is likely. In the present case, the petitioner was arrested in the said case registered on 14.2.1988 and has been in custody for almost a year and more than 51/2 months. There is no other ground shown on the record that the detention order was required which could be held sufficient for subjective satisfaction of the detaining authority.

Keeping the foregoing observations in view, I find that the detention Annexure P1 and the grounds of detention Annexure P2 and the confirmation order Annexure P3 are invalid and violative of the guaranteed liberty of an individual, as they have been passed with a view to bypassing the criminal prosecution in the alleged case against the petitioner. The petitioner is directed to be set at liberty unless he is required in some other case. He is released immediately.

JUDGMENT accordingly.