Gurvinder Singh vs Under Secretary, Home

G. S. Chahal, J.

By means of this petition under Articles 226/227 of the Constitution of India Gurvinder Singh petitioner seeks quashing of detention order Annexure P.1 passed under Section 3 of COFEPOSA Act, 1974 (hereinafter referred to as ''the Act''). The challenge has been made by the petitioner at the preexecution stage.

The grounds on which detention of the petitioner has been ordered may be taken from Annexure P. 2 and summarised as follows :

On August 16, 1991 working on a specific information, the Customs and BSF staff, Amritsar, held a naka near village Waryam, Nangal on AmritsarBatala Road. One of the parties was sent towards Gurdaspur for keeping surveillance on 4 green colour scooter PIA 7677 to ensure that the culprits may not divert their route from Batala. On seeing the suspected scooter coming towards Amritsar, the surveillance party rushed back immediately, at about 10.30 hours, a green colour scooter was observed by the naka party coming from the side of Batala. It was signalled to stop. Kanwaljit Singh, the brother of the petitioner, was driving the scooter while the petitioner was riding the pillion seat. The petitioner fired from his pistol but was overpowered by the Customs and BSF Staff. The pistol was snatched from him. Case FIR 97 dated August 16, 1991 under Sections 307/34 of the Indian Penal Code and 25 of the Arms Act read with Section 110 of the Customs Act was registered against the petitioner and his brother Kanwaljit Singh. After verifying their addresses, two independent witnesses were called and the rummaging of the scooter was carried out leading to the recovery of 196 gold biscuits of foreign origin concealed beneath the petrol tank. From further search, six live catridges of .30 bore pistol and a pistol of the same bore were recovered from the petitioner. The petitioner and his brother had no licence for keeping the gold or the arms and ammunition. The gold was got tested and found to be of 24 purity weighing 228661.440 grams valued at Rs. 9373190/. On interrogation, the brother of the petitioner disclosed that he and the petitioner had gone by bus at a point on Qadian road and a man namely Nishan Singh alias Gurpreet Singh came on scooter PIA 7677 belonging to his brother and handed over the same to them and told them that 196 gold biscuits of foreign markings had been cancealed beneath the petrol tank. During interrogation the circumstances were also disclosed, in which they had come in contact with Nishan Singh. The petitioner had been released on bail by the judicial court on November 26, 1981. The detention was necessary from preventing him from indulging in pre judicial activities in future.

The petitioner has challenged his detention on the grounds that there was inordinate delay in passing of the detention orderAnnexure P.1. The pre judicial activity was dated 16th August, 1991, while the detention order was passed on 3rd of February, 1992 after a, lapse of about six months.

With respect to delay in passing the detention order, the following facts were stated in the return :

"3. (a) That in reply to the contents of this sub para, it is submitted that the test of proximity is not to be applied mechanically by counting the time consumed in passing the order of detention from the prejudicial activities indulged in by the petitioner, if the time taken between the last prejudicial activity and the passing of the order of detention remains alive and there is no delay in passingthe order of detention. From the petitioner 196 gold biscuits of foreign origin were recovered on 1681991. It took sufficiently long time in the investigation of the case at various levels as the antecedents of the petitioner and his coassociates were to be verified and various links of the petitioner had to be proved and unearthed. After collecting and thoroughly examining the entire material on record the sponsoring authority sponsored the proposal on 1 10 1991 to the State Government for the detention of the petitioner which was received in the office of answering respondent on 3101991 and the proposal was examined by the legal agency from 4101991 to 7101991. Some additional information was called from the sponsoring authority vide State Government letter dated 10101991. In the meanwhile, the case was further examined and the original grounds of detention in Punjabi were prepared and the same were translated into English. Number of copies of supporting material were typed which was quite a voluminous job consumed sufficiently long time. The case was again examined from 10121991 to 11121991 by the legal agency in the light of information received from the sponsoring authority vide his letter dated 4121091 in the office of the Answering Respondent on 5121991 and ultimately the proposal for passing the detention order of the petitioner was sent to the State Law Department, the proposal remained under examination in the office of Answering Respondent and ultimately after consideration of the material on record, with due, application of mind, the order of detention was passed by the competent authority on 211992 and formal order was issued on 811992. During the processing of the detention proposal 17/8, 1818, 24/8 and 31 8 199 1, 1/9, 2/9 7/9, 8/9, 14/9, 15/9, 21/9, 22/9, 29/9 and 299.1991, 2/10, 5110, 6/10, 12/10, 13/10, 19/10 20/10, 23/10, 26/10 and 27101991, 1/11 to 3/11, 5111, 9/11, 101/11, 16/11, 17/11, 21/11, 23/11, 24/11, and 30111991, 1/12, 7/12, 8/12, 11/12, 14/12, 15/12, 21/12, 22/12, 25112, 28/12 and 29121991, 411992 and 511992 were holidays.

From the submissions made above, it is clear that the case was processed with due promptitude at all the stages and the time taken in passing the detention order is reasonable and has been, adequately, explained. There is a close nexus between the prejudicial activities indulged in by the detenu and the detention order as the case remained under active processing during this period.

That the contents of the para as regards to the fact that the order is not preventive but punitive is wrong and misconceived and hence denied. The detention order was passed by the detaining authority on the basis of his bonafide subjective satisfaction reached after consideration of the material on record with due application of mind and is of preventive nature as contemplated by the COFEPOSA Act".

The explanation given by the respondents is not sufficient. With respect to a prejudicial activity of August 16, 1991, the Sponsoring Authority sponsored the proposal for the first time on October 1, 1991 and thereafter it remained pending from one stage to another and the orders were ultimately passed on 8th January, 1992 after a lapse of more than four months. The case was not dealt with any promptness after this proposal had been sponsored.

In Lakshman Khatik v. The State of West Bengal, AIR 1974 Supreme Court 1264 the order of detention was held to be invalid where it had been passed after a lapse of about eight months from the dates of incidents. The relevant portion of that judgment reads..........Indeed mere delay in passing a detention order is not conclusive but we have to see the type of grounds 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 there was such a long delay in passing the order. The Distt. 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 or detention is invalid."

In T.A. Abdul Rehman v. State of Kerala, 1989(2) Recent Criminal Reports 459 : 1989(2) All India Criminal Law Reporter 294 (SC) their Lordships of the Supreme Court held as under :

"When there is time lag of I I months between the prejudicial activities and the order of detention, the test as to whether the detention should be quashed, on the ground of delay is not a rigid or mechanical test by merely counting the number of months; the court should examine whether The Detaining Authority has satisfactorily explained the delay."

I agree with the contention of the learned counsel that there was inordinate delay in passing of the detention order and that will raise genuine doubt about the subjective satisfaction action of the detaining authority After the passing of the order no serious effort appears to have been made to detain the petitioner. The present petition was filed in September, 1992, and the authorities had sufficient time to move under Section 7 of the Act for enforcing presence of the petitioner. Reply to the effect that the petitioner had been evading execution of the detention order hardly gives credit to the authorities Incharge of enforcing the orders of detention. In case where the authorities are guilty of inaction after passing of the order, a reasonable conclusion has to be drawn that the detention order has lost nexus with the prejudicial activities; For all the reasons stated above, I accept the petition and quash the detention order.