Gurmukh Singh @ Pardhan vs State of Punjab

S.D. Bajaj, J.

For the activities mentioned in the grounds of detention annexure PI/A attributed to the petitioner for the period of middle of April, 1988 to first week of July 1988, the detaining authority vide its impugned order of detention Annexure P1 dated 6th January, 1989 ordered preventive detention of the petitioner in terms of section 3(1) of the provisions of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (Central Act 46 of 1988).

The legality of detention order Annexure P1 has been assailed on the grounds that there is no proximity of time between the events set out in the grounds of detention Annexure P1/A, the detention order Annexure P1 and the actual detention. Events as already stated are of the period from middle of April to first week of July, 1989. The detention order based thereon was made on 6th January, 1989 while detenu petitioner was actually arrested on 11th August, 1990, that the detaining authority did not apply its mind to the facts and circumstances of the petitioner''s case nor is the order of detention based on its subjective satisfaction, that the representation filed by the petitioner was not disposed of promptly by the authorities as envisaged in law, and that the confessional statement recorded by the police against the petitioner is inadmissible in terms of section 25 of the Indian Evidence Act.

In reply it was asserted that the time taken in making the order of detention was quite reasonable and, therefore there was close proximity and nexus between prejudicial activities attributed to the petitioner and the making of the order of detention against him and that there was no undue delay in execution of the detention order. It was detenu petitioner who was playing hide and seek with the police and, therefore, could not be arrested by it before 11th August, 1990, there was sufficient material before the detaining authority justifying the making of the order of detention against the detenu petitioner and, therefore, the detaining authority made the order on the application of mind. Factually it was conceded that the prejudicial activities attributed to the petitioner were of the period from middle of April to first week of July, 1988. Nothing was said in reply regarding admissibility of confession statement allegedly made to the police except that it was rightly taken into consideration by the detaining authority.

I have heard Shri A.S. Sandhu Advocate, for the petitioner, Shri S.S. Saron, A.A.G. Punjab, for the State and have carefully gone through the relevant material on record.

The explanation offered for 61/2 months to 9 months delay in making the detention order from the date of prejudicial activity attributed to the detenu petitioner reads :

"Though the prejudicial activities indulged in by the petitioner pertained to the period of middle of April and to first week of July, 1988, when his interrogation statement was recorded after he was arrested on 18.7.87, after this the entire material was linked and processed in the office of SSP, Tarn Taran. After that entire material, which was too voluminous, was prepared and typed in English and in the mother tongue of the petitioner. This was time consuming factor at the originating stage. The proposal was sent by SSP, Tarn Taran after observing all legal formalities to DM/Amritsar who after examining the whole case sponsored the proposal vide his letter dated 5.10.88. The proposal could originate only after completion of investigation of the criminal case and the interrogation of coassociate and after preliminary scrutiny of the case in the above said offices, which took time, the detention proposal sponsored by the DM Amritsar was received at the State Hqrs. on 7.10.88. The proposal was then examined on 10/11, 13/10, 14/10, 1988 in the legal Agency of CID and the same was sent to the Law Deptt. where it was examined on 7.11.88 and was sent to State Govt. who in terms asked for Addl. informations, which were called vide State Govt.''s letter dated 17.11.88. The proposal was reexamined in the light of the clarification on 6.12.88 in Legal Agency of the CID and the case was sent to Law Deptt. where. it remained under examination on 8.12.88. The proposal was put up before the competent authority who after due consideration passed the order of detention of the petitioner on 2.1.89 and formal order was passed on 6.1.89, which processed the case at Slate level. The following days i. e. 8/10, 9/10, 15/10, 16/10, 20/10, 22/10, 23/10, 25/10, 30/10/89, 1/11, 5/11, 6/11, 9/11, 13/1, 21/11, 23/11. 26/11, 27/11/1989 and 3/12. 4/12, 0/12, 11/12, 13/12, 17/12, 18/12, 24/12, 25/12 and 31/12/1989 were holidays.

From the submission made above, it is clear that the case was processed with promptness at all the stages and all the time taken in passing the detention order is reasonable and has been adequately explained. There is close nexus between the prejudicial activities indulged in by the petitioner and the passing of the detention order. The case remained under process during the period".

Similarly the explanation for 19th months and 10 days delay in executing the detention order reads :

"In reply to this pars it is submitted that there is no delay in executing the detention order. The detention order passed by the State Govt. was sent to Distt. Authorities for execution. The petitioner was playing hide and seek with the police and was ultimately traced and arrested on 11.8.1990. There was no need to have recourse to the provisions of section 8 of the PITNDPS Act and in these circumstances petitioner was arrested within a reasonable time. The order of detention is purely a preventive measure to prevent the petitioner from indulging in such like prejudicial activities in future and is not punitive in any manner whatsoever. The rest of the para is denied being wrong".

Neither of the two delays, in making and executing the detention order is satisfactorily explained. Commenting thereon their Lordships of the Supreme Court observed in Lakshman Khatik v. The State of West Bengal, AIR 1974 Supreme Court 1264, Jagan Nath Biswas v. The State of West Bengal, AIR 1975 Supreme Court 1516, Sk Sherajul v. State of West Bengal, AIR 1975 Supreme Court 157, and T.A. Abdul Rahman v. State of Karela and others, 1989(2) Recent Criminal Reports 459 :

"Indeed mere delay in passing a detention order is not conclusive, but we have to see the type of ground given and consider whether such grounds could really weigh with an officer some 7 months later in coming to the conclusion that it was necessary to detain the petitioner to prevent him from acting in a manner prejudicial to the maintenance of essential supplies of foodgrains. It is not explained why was there such a long delay in passing the order. The District Magistrate appears almost to have passed an order of conviction and sentence for offences committed about 7 months earlier. The authorities concerned must have due regard to the object with which the order is passed, and if the object was to prevent disruption of supplies of foodgrains one should think that prompt action in such matters should be taken as soon as incidents like those which are referred to in the grounds have taken place. In our opinion, the order of detention is invalid".

Following it this Court also observed in Sawinder Singh alias Mohinder Singh v. State of Punjab and another, 1988(2) Chandigarh Law Reporter 557 :

"A bare reading of this para discloses that besides sermonising as to how the elapse of time between the activities of the detenu and the order of detention is to be judged to satisfy ''the test'' of proximity, no facts have been disclosed to show as to how the authority concerned utilised this time in making up its mind to pass the impugned order. To satisfy myself about the. utilisation of this time by the said authority, I had gone through the record of the case with the help of Mr. D.S. Brar, Deputy Advocate General, Punjab, who is assisted by Mr. Pritam Singh, Assistant Attorney working in the office of Crime Investigating Department, Punjab Police and find that the proposal to detain the petitioner under the Act was, for the first time, initiated by the Senior Superintendent of Police, Amritsar as late as on 8.10.85 and after having been endorsed by the District Magistrate on 11.10.1985, the impugned order was passed by the detaining authority on 8.11.1985, though it was actually issued on 22.11.1985. How and why these authorities did not think of initiating the proceedings under this Act for that long time after having all, information and material stated in the grounds of the detention, remains unexplained in the light of this record. It has repeatedly been ruled by the final Court that when there is unexplained delay between passing of the detention order and the ground which led to the passing of the same, there could be no rational satisfaction with the detaining authority for passing of the detention order. Some of these cases are reported as Jagan Nath Biswas v. The State of West Bengal, AIR 1975; SC 1516; Lakshman Khatik v. The State of West Bengal, AIR 1974 SC 1264 and Harnek Singh v. The State of Punjab and others, AIR 1982 SC 682 : 1982(1) CLR 517. In these cases, the delay in the passing of the orders from the dates of last one of the activities attributed to the detenus ranged between six months to one and a half years. It may be true as is sought to be urged by Mr. D.S. Brar, that mere delay in passing the detention order may not be conclusively fatal but in that case the detaining authority is under an obligation to take the Court into confidence and to disclose how its mind had been working from the date of gaining knowledge of the detenu''s prejudicial activities. In the instant case, the activities attributed to the petitioner on the basis of the which his detention is sought to be justified, were carried out, as already indicated, for a period of about six months, i. e. from September, 1984 to February 7, 1985 and these stood abandoned or at least have not been shown to be continuing for about 91/2 months i.e. from 7.2.1985, the date of the last activity to 22.11.1985 the date of passing the impugned order. The order appears to be punitive rather than preventive".

Similarly in regard to 19 months and 10 days delay in execution of detention order it was observed by the Supreme Court in Sk Nizamuddin v. State of West Bengal, AIR 1974 Supreme Court 2353 and by this Court in Daljit Singh @ Bhola v. State of Punjab, 1989(2) Recent Criminal Reports 172 :

"The well settled proposition as laid down in the numerous judgments of the S.C. and other High Courts is that, if there is unreasonable delay between date of order of detention and date of arrest of detenu, such delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority and it would be legitimate for the Courts to draw an inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the petitioner. It was also held in the latest judgment of the Supreme Court reported as Bhanwar Lal Ganesh Mal v. State of Tamil Nadu, 1979 5GC (Cri) 318; 1972 Cri LJ 462, Where on similar facts, it was observed as under :

"The purpose of detention under the COFEPOSA is not punitive but preventive. There must be a "live and approximate link" so that if there is a long and unexplained delay between the order of detention and arrest of. the detenu, the order of detention may be struck down unless the ground indicate a fresh application of mind of the detaining authority to new situation and the changed circumstances."

It is no doubt true that the courts cannot lay down any time lag as to how far distant, the past conduct, should be, to justify the conclusion that the person concerned, if not detained may indulge to prejudicial activities, but if there is long gap between the prejudicial activity of a detenu and the detention order, then in that case the detaining authority is dutybound to explain the delay, with a view to show that there was proximity between the prejudicial activity and the detention order. If it is not reasonably explained, the necessary consequence must follow, i,e. an inference may be drawn that there is no nexus between the incident and the order of detention. In this view of the matter, the order of detention is liable to be struck down as invalid.

Regarding the delay from 22nd October, 1986 to 24th April, 1987 my learned brother Harbans Singh Rai, J. in Parduman Singh v. State of Punjab, 1988(2) Recent Criminal Reports 423 observed :

"Another ground taken by the learned counsel for the petitioner is that the grounds of detention date back to October 12, 1986 to October 31, 1986 and the detention order was passed on May 28, 1987, and it was served on December 19, 1981, and there is no proximity between the events mentioned in the grounds of detention and the order of detention and the detention itself. The order of detention was issued seven months after the first alleged incident and this delay of seven months is not explained. The learned counsel for the petitioner has relied upon Jagon Nath Biswas v. The State of West Bengal, AIR 1975 SC 15 16, wherein it was held;

"Maintenance of Internal Security Act 1971, Section 3Inordinate delay in passing order of detention after the occurrence of the incidents relied on delay not explained. Bona fides of subjective satisfaction of detaining authority held not established.

In my view, the grounds of detention had become stale and on this ground also the detention is liable to be quashed".

Detention order Annexure P.1 thus gets vitiated on both these counts.

Learned counsel for the respondent has referred me to the observations made by Hon''ble the Supreme Court in Abdul Salam alias Thiyyan v. Union of India and others, 1990(3) R.C.R.(Criminal) 484 : AIR 1990 Supreme Court 1446 and urged that mere delay in making the order of detention as also executing it cannot be the ground for setting it aside. In the authority cited there was a delay of 3 months from the date of prejudicial activity in making the order and a further delay of 3 month in executing the order through arrest of detenu petitioner which had been duly explained by the Union of India in their reply affidavit. In the present case the inordinate delay of 61/2 months to 9 months in making the order and a further delay of 19 months and 10 days in executing it has not at all been explained; much less satisfactorily. The argument advanced on behalf of the respondent is thus wholly without merit and the authority cited does not support it.

Hardly ten days were taken to decide the representation and this is why the ground of delay in its disposal was not pressed at the stage of arguments. Similarly the confession allegedly extracted by the police through third degree methods has also not been brought on record and it would be futile to discuss its admissibility before the detaining authority.

For the reasons given above, Criminal Writ No. 2253 succeeds and is allowed. Detention order Annexure P. I based on grounds of detention Annexure P. 1/A is quashed.