Gurmej Singh vs State of Punjab

S.S. Grewal, J.—This second petition under Articles 226/227 of the Constitution of India, relates to quashment of the order of detention of the petitioner passed by the respondent State, Annexure P-1, dated 8-7-1987, under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (1974) (hereinafter referred to as the COFE-POSA Act) grounds of detention Annexure P-1 (A) and confirmation order dated 22-11-1988, Annexure P-2.

Facts relevant for the disposal of this petition are that the petitioner was arrested by Border Security Force near the police picket of village Bharowal, District Amritsar, on 23rd May, 1986 and gold biscuits numbering 100 were recovered from his possession. F.I.R. No. 123 u/s 411/414, I.P.C. was registered against the petitioner at Police Station, Gharinda. During the investigation he also gave details concerning modus operandi of the smuggling activities carried on by him along with other persons including a Pakistani National. The petitioner was subsequently enlarged on bail by the trial Court. Thereafter the State Government passed order of detention against the petitioner u/s 3(1) of the COFEPOSA Act on 3th July, 1987 and the same was served; on the petitioner on 23rd May, 1988. Since then the petitioner is under detention. It was next pleaded that the petitioner challenged the detention order on some other grounds through Criminal Writ Petition No. 1625 of 1988 which was dismissed on November 21, 1988. The impugned orders of detention/ confirmation have been challenged firstly on the ground that the fact that the detenu was released on bail by the trial Court and other material including recovery memos placed before the detaining authority were not considered by it for its subjective satisfaction before passing the impugned order of detention. Nor, such documents were supplied to the petitioner, in order to make any effective representation; secondly, that the representation made by the petitioner to the respondent State was not decided within reasonable time. There was undue delay of 28 days in considering the reply of the District Magistrate, and, that the impugned order of detention is. liable to be quashed.

The State in its reply raised preliminary objection that the petition is not maintainable in the present form inasmuch as Criminal Writ Petition No. 1625 of 1988 moved earlier by the petitioner for quashing the impugned detention order on similar grounds was dismissed by A. P. Chowdhri, J. on 21st November, 1988. On merits, it was admitted that the petitioner was arrested in case F.I.R. No. 123 and remained in police custody and later on released on bail. It was, however, pleaded that after the detention order was issued the petitioner went underground to evade execution of the detention order. The petitioner was apprehended on 23rd May, 1988. As there was likelihood of the petitioner being arrested at any time, so there was no necessity for taking action u/s 7 of the COFEPOSA Act, and, for moving for cancellation of the bail. It was also pleaded that the order is preventive and not punitive and the delay for execution of the detention order was caused by the petitioner who went underground to evade the execution of the detention order. It was also pleaded that the representation of the petitioner was dealt with promptness and the rejection thereof was duly conveyed to the petitioner. It was further pleaded that the representation of the petitioner was received by the Superintendent Central Jail, Patiala, on December 1, 1988 and the same was received by the Home Secretary to Government of Punjab on 2nd December, 1988. 3rd and 4th December, being holidays, parawise comments were called from the District authorities on 5th December, 1988 and the comments of Senior Superintendent of Police, Amritsar were received by the District Magistrate, Amritsar, on 19th Dec., 1988 and the same were received by the Secretary Home on 23rd December, 1988. The representation was processed and dealt with at various levels on 26-12-1988 and 27-12-1988, and the same ultimately rejected after due consideration by the competent authority on 28-12-1988. Rejection of the representation was duly conveyed to the petitioner through Superintendent Central Jail, Patiala on 22nd January, 1989. It was further pleaded that the detaining authority was conscious at the time of passing the impugned order of detention that the petitioner was on bail. All relevant material was placed before the detaining authority, who, arrived at his subjective satisfaction after duly considering all the relevant material before passing order of detention. All copies of supporting material including copies of the recovery memos was supplied to the petitioner against proper receipt. Other averments in the petition were denied.

Learned counsel for the parties were heard.

It was frankly conceded by the learned counsel for the petitioner that only those points which had not been dealt with in the earlier writ petition can be taken into consideration for the decision of the present writ petition. The preliminary objection raised on behalf of the State that no second writ petition is maintainable, in the instant case, because the objections now being raised by the petitioner were not specifically raised earlier in his first writ petition, cannot be legally sustained inasmuch as principle of constructive res judicata would not be applicable to the present petition, as this petition relates to the valuable rights of liberty of the petitioner who is already under detention under the COFEPOSA Act and obviously may not be in a position either to receive proper legal advice, or, to communicate all the necessary facts or circumstances to his counsel. Thus mere fact that specific plea has not been raised in the earlier petition by a detenu under the COFEPOSA Act, in my view, would not operate as bar for raising such plea in his subsequent petition. Nor, in the facts and circumstances of the present case, the detenu can be penalised or debarred from raising an additional plea which has not been specifically dealt with in the earlier writ petition filed by him.

It was vehemently argued by the counsel for the detenu that there is inordinate and unreasonable delay of 28 days in considering the representation of the detenu by the State Government which has violated the rights of the detenu under Article 22(5) of the Constitution and vitiated the detention order. Reliance in this respect was placed on authority of the apex Court in Shri. Saleh Mohammed Vs. Union of India (UOI) and Others, , where a delay of 22 days in considering the representation of the detenu was held to be inordinate and unreasonable. It was further observed as under (para 8) :--

"Times out of number, this Court has emphasised that where the liberty of an individual is curtailed under a law of preventive detention, the representation, if any, made by him must be attended to, dealt with and considered with watchful, care and reasonable promptitude lest the safeguards provided in Article 22(5) of the Constitution and the statute concerned should be stultified and rendered meaningless."

Reliance was further placed on the authority in case Harish Pahwa Vs. State of U. P. and Others, , wherein it was held that there was no explanation given by the Government as to why no action was taken on the representation of the detenu on 4th, 5th and 25th June, 1980 and what consideration was given by the Government to it from 13th June, 1980 to 16th June, 1980. On that ground it was held that there was inordinate delay in considering the representation of the detenu and the detention became bad in law.

Relying on the aforesaid authorities, it was observed by their Lordships of the Supreme Court in Piara Singh Vs. State of Punjab, that the delay in dealing with the representation of the petitioner, which was admittedly received by the Government on 14th January, 1987 and rejected as late as on 26th Feb. 1987, must be considered as inordinate delay in dealing with the representation. No explanation is given in the counter-affidavit as to why the representation could not have been dealt with and disposed of earlier, and hence it must be held that the order of detention of the petitioner is vitiated by reason of delay in dealing with his representation.

The explanation furnished by the State concerning delay in dealing with the representation of the detenu is to the effect that after receipt of the said representation by the jail authorities on 1st December, 1988, the same was received by the State Government on 2nd December, 1988. 3rd and 4th December, 1988 being holidays telex message was sent on 5th December, 1988 to the District authorities for sending parawise comments. After reminders, Senior Superintendent of Police, Amritsar sent his comments on 19th December, 1988 to District Magistrate, Amritsar, and, the same along with the comments of the District Magistrate was received by the State on 23rd December, 1988. 24th and 25th December, 1988 being holidays, the representation was processed and dealt with at various levels for two days before it was ultimately rejected on 28th December, 1988 by the competent authority, and, the information concerning rejection of the representation was conveyed to the petitioner through the Superintendent, Central Jail, Patiala, on 2nd January, 1989. No plausible explanation finds mention in the written statement filed by the State as to why the District authorities at Amritsar could not sent their comments to the State before 23rd December, 1988. The oral submissions of the State counsel that the District authorities at Amritsar were busy during this interval in dealing with terrorists activities, or, other law and order problems, in the absence of the affidavits of, either the District Magistrate, Amritsar, or, the Senior Superintendent of Police, Amritsar, as to why they could not send their parawise comments concerning the said representation earlier, one cannot be considered sufficient to hold that the delay in considering the representation of the detenu has been duly explained. It is also pertinent to note that even after the comments were received on 22nd Dec., 1988, it took another six days before the State rejected the representation. The facts and circumstances of the present case clearly show that there was remissness, indifference and avoidable delay on the part of the detaining authority in dealing with the representation of the detenu, which certainly violated the safeguards provided to an individual citizen under Article 22(5) of the Constitution, where, his liberty has been curtailed under a law of preventive detention. The authority cited on behalf of the State in case Raisuddin alias Babu Tamchi Vs. State of Uttar Pradesh and Another, relates to different facts and circumstances regarding detention under National Security Act, whereas, the facts and circumstances of the case in hand are entirely different. As such the aforecited authority is not fully applicable to the facts of the case in hand and is clearly distinguishable. The detention of Gurmej Singh detenu is thus bad in law and is liable to be set aside on this ground alone.

Another important aspect of the case is that the fact that the detenu was released on bail was not considered by the detaining authority while passing the impugned detention order Annexure P/1. Neither any such material finds mention in the grounds of detention, nor, is there any mention in this regard in the detention order, even though, it has been admitted in para No. 8 of the written reply filed by the State that the detaining authority at the time of passing the order of detention was conscious that the petitioner was on bail. In the case the explanation furnished by the State had been correct, then, normally this aspect of the case would have found mention in the detention order, or at least in the grounds of detention. In these circumstances, it cannot be held that before the detaining authority arrived at its subjective satisfaction, it had considered all the relevant circumstances, or, material, or, that the impugned order of detention has been passed after due consideration of all the material facts. The impugned detention order is, thus, liable to be quashed.

For the foregoing reasons, the impugned orders of detention/confirmation passed against Gurmej Singh detenu are directed to be quashed. This writ petition is accordingly allowed and the detenu is directed to be set at liberty forthwith.