Gurnam Singh vs State of Punjab

S.K. Jain, J.

In this Habeas Corpus petition, the order of detention dated 8th March, 1991 (Annexure P1) under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the Act) has been challenged by the petitioner, Gurnam Singh.

The grounds of detention (Annexure P2) annexed with the detention order are to the effect that on September 1, 1990, the petitioner alongwith the Karamjit Singh entered into conspiracy to smuggle gold from Kabul. In pursuance of the conspiracy, they smuggled gold on 15th of July, 1990 and 5th of August, 1990. Both of them visited Kabul on August 26, 1990 and each of them smuggled two gold biscuits of foreign mark weighing 233.280 gms. of 24 purity valued at Rs. 75,816/ as they arrived at Raja Sansi Airport, from Kabul through International Flight No. FG386 on September 1, 1990. It is alleged that on account of these activities it became necessary to pass the impugned detention order against the petitioner. Admittedly a similar detention order on identical ground was passed against Karamjit Singh, coaccused of the petitioner as both of them had jointly indulged in activities of smuggling from Kabul to India. However, on the recommendations of the Advisory Board, Karamjit Singh was released vide an order of the State Government dated March 28, 1992 (Annexure P5). The detention order against the petitioner was confirmed by the State Government on April 2, 1992 (Annexure P4) after the receipt of the recommendations of the Advisory Board.

The petitioner filed representation (Annexure P3) on February 1, 1992 but the same was rejected on February 28, 1992 on merits.

It is contended on behalf of the petitioner that it was incumbent on the Government to have brought to the notice of the detaining authority the order regarding revocation of detention order against Karamjit Singh and since this was not done, prejudice was caused to the petitioner and on this ground the detention order passed against him is vitiated. In support of his contention learned Counsel for the detenupetitioner has drawn my attention towards ground of detention Annexure P2 and reply filed on behalf of the State with particular reference to para Nos. 6 and 6(vi) thereof respectively wherefrom it is evident that the petitioner and his coaccused Karamjit Singh had come from Kabul through International Flight No. FG386 and landed at Raja Sansi Airport on 1.9.1990 and two gold biscuits of foreign origin and of 24 Act purity weighing 233.280 gms and valued at Rs. 75,816/ were recovered from each of them. This submission is well founded and must be accepted. It is not controverted, rather admitted on behalf of the State vide para No. 6(vi) of the reply that when the detention of the petitioner was confirmed on 2.4.1992 (Annexure P4), the order of detention of Karamjit Singh, coaccused of the petitioner had already been revoked vide order dated 28.3.1992 (Annexure P5) on the recommendations of the Advisory Board. It is also not disputed that initially the petitioner as well as his coaccused Karamjit Singh had been detained on identical grounds. It is also the case of the State that the petitioner and Karamjit Singh, his coaccused, had participated together in smuggling activities. Under the circumstances, it was expedient that the order of revocation of the detention passed against Karamjit Singh ought to have been considered by the detaining authority while confirming the order of detention passed against the petitioner. Had the revocation order of detention of Karamjit Singh been placed before the detaining authority it would have influenced its mind one way or the other and, therefore, it can well be said that there was non application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the confirmation order dated 2.4.1992 (Annexure P4) invalid and illegal. In an identical situation in Santosh Kumar v. State of U.P. and another, 1986 Crl. Law Journal 557, Allahabad High Court relying on the ratio laid down in Mohd. Shakeel Vahid Ahmed v. State of Maharashtra, 1983 Crl. Law Journal 967, had held as under :

"In the instant case, however, when the detention order against Santosh Kumar, the petitioner was passed, the report of the Advisory Board or the release order in respect of Lalman was not available because that was a subsequent affair, but at the time when the detention order in respect of the detention of Santosh Kumar was confirmed by the State Government, the Advisory Board''s report and the release order in respect of Lalman were before the State Government and consequently they should have been taken into consideration even at that stage. This view was expressed by a Division Bench of this Court of which one of us was a member in the case of Aruna Shanker v. State of U.P., W.P. No. 6346 of 1983 (H.C.) decided on 30.4.1984 (reported in 1984 All L.J. 1031). That being so, the detention order, in so far as it was based on the incident relating to Lalman, would be vitiated on the aforesaid ground."

Ratio in Mohd. Shakeel''s case (supra) was followed by this Court in Mohinder Singh v. State of Punjab, 1987 Chandigarh Crl. Cases 191.

In Asha Devi v. K. Shiv Raj and another, AIR 1979 SC 447 : 1979 Crl. L.J. 203, it was held by the Supreme Court in para No. 7 of the report as under :

"7. ....... ....... ....... ........

since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority it must be held that there was nonapplication of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the impugned detention order invalid and illegal.........."

In the instant case when the confirmation order dated 2.4.1992 (Annexure P4) against Gurnam Singh the petitioner was passed, the report of the Advisory Board and the release order dated 28.3.1992 (Annexure P5) in respect of Karamjit Singh were before the State Government and consequently they should have been taken into consideration even at that stage. But it was not so done. This fact has not been denied in the return filed on behalf of the State Government. The question is whether the detaining authority itself while confirming the order of detention passed against the petitioner had considered the revocation of detention of Karamjit Singh. It is evident from the return filed by the State that this was not done at that stage. It is thus clear that the detention of the petitioner was confirmed without considering the release order in the case of Karamjit Singh. The contents of the order dated 2.4.1992 (Annexure P4) by which the order of detention of Gurnam Singh, the petitioner, was confirmed also do not make any mention of the release of Karamjit Singh who had been detained on identical grounds. Thus a very crucial material which should have informed the detaining authority the circumstances in which Karamjit Singh was ordered to be released was not considered when detention order against the petitioner was confirmed. Irrespective of the view that could have been taken by the detaining authority after consideration of the release order of Karamjit Singh the said vital material must have been considered by the detaining authority. In view of the above circumstances, the detention order datd 8.3.1991 (Annexure P1) and confirmation order dated 2.4.1992 (Annexure P4) passed against the petitioner are vitiated.

Learned Counsel has also taken two more grounds for quashing the detention order namely, the delay in considering the representation of the detenu and secondly, the delay in execution of the detention order passed against him. But in view of aforesaid discussion it is not necessary to go into the same.

Consequently, this petition is allowed and the impugned detention order dated 8.3.1991 (Annexure P1) and the subsequent confirmation order dated 2.4.1992 (Annexure P4) are wholly unsustainable and are, therefore, quashed. The petitioner shall be released forthwith unless he is required to be detained in connection with any other case.

Petittion allowed.