Harinder Singh alias Bhola Sarpanch vs Union of India

S.D. Bajaj, J.

For the prejudicial activities attributed to detenupetitioner Harinder Singh in grounds of detention Annexure P.6, for the period 9th September, 1987 to 12th September, 1987, detention order Annexure P.5 was made by the Detaining Authority against him on 31st August, 1988 under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 for preventing him from engaging in the concealment, transportation and interState import of narcotic drugs. In Criminal Misc. No. 266 of 1989 the validity of the detention order Annexure P.5 based on the grounds of detention Annexure P.6 has been assailed by the detenupetitioner on the grounds of its having been passed by the Detaining Authority in a mechanical manner without application of mind to the peculiar facts and circumstances of the case against him, much less on its subjective satisfaction, that there was no nexus between prejudicial activity and the order of detention which was passed 11 months thereafter and served on the petitioner 121/2 months after it, that the Act was enforced on 4th July, 1988 and action on its basis was taken retrospectively qua prejudicial activities of 9th September, 1987 to 12th September, 1987 and that the representation dated 17th November, 1988 was not decided by the authorities concerned earnestly and with due promptitude as envisaged in Article 22(5) of the Constitution of India.

From 28th February, 1989 till date repeated opportunities were granted to the respondents for putting in their reply but of no avail. The matter is, therefore, being decided without reply. Assertions made by the petitioner on all the three counts aforesaid therefore go uncontroverted on record.

I have heard Shri H.S. Mattewal, Senior Advocate, with Shri Sukhbir Singh, Advocate, for the petitioner and Mrs. Jai Shree Anand, Advocate, for the respondents and have carefully gone through the record. All the four grounds of illegality vitiating the order of detention Annexure P.5 dated 31st August, 1988 are being discussed hereinafter atseriatum :

(i) Nonapplication of mind and want of subjective satisfaction of the Detaining Authority : A bare reading of detenttion order Annexure P5 and of the grounds of detention Annexure P6 wholly makes out that the factum of the petitioner having been admitted to conditional bail on 9th November, 1987 was not adverted to therein by the detaining autohrity. Commenting on this aspect of the matter in Anant Sakharam Raut v. State of Maharashtra and anotther, AIR 1987 Supreme Court 137, their Lordships of the Supreme Court observed :

"The one contention strongly pressed before us by the petitioner''s counsel is that the Detaining Authority was not made aware at the time the detention order was made that the detenu had moved application for bail in the three pending cases and that he was enlarged on bail on 13.1.1986, 14.1.1986 and 15.1.1986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention.

In our view this is the short manner in which the two cases can be disposed of. If the petitioner is found disturbing law and order or misusing the bail granted to him, the authorities would be at liberty to move the appropriate Court to get the bail orders cancelled. One does not know how the Detaining Authority would have acted if he was made aware of the above details.

We are not satisfied that this is a fit case to resort to preventive detention. We refrained from referring to the other grounds urged before us and from examining them. The petitioner is entitled to succeed on the first ground.

We hold that there was clear nonapplication of mind on the part of the Detaining Authority about the fact that the petitioner was granted bail when the order of detention was passed."

(ii) Want of nexus or proximity between the prejudicial activities and the order of detention. There is a time lag of 11 months in the prejudicial activities attributed to the petitioner and the date of the order of detention viz. 31st August, 1988. Detention order was served upon the petitioner on 11th October, 1988. While examining this aspect of the matter in Amrik Singh alias Mika v. The State of Punjab, 1987(1) Recent Criminal Reports 443 and Sawinder Singh alias Mohinder Singh v. State of Punjab and another, 1988(2) Chandigarh Law Reporter 557 this court observed : "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 1912 SC 682 : 1982(1) CLR 517. In these cases, the delay in passing of the orders from the date of last one of the activities attributed to the detenus ranged between six months to one and 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 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 last activity to 22.1.1985, the date of passing the impugned order. The order appears to be punitive rather than preventive. It has repeatedly been laid down by this Court as well as the final Court that the purpose of passing detention orders is not to punish the detenu for his activities in the distant past but is rather to prevent him from carrying on the activities which are otherwise found to be prejudicial under the Act.

(iii) Retrospective enforcement of Act No. 46 of 1988 in respect of prejudicial activities of earlier period of March to May, 1988. Dealing with this aspect of the matter in Banta Singh v. Punjab Government and another, 1989(1) All India C.L.R. 758, this Court observed. "Then again the Narcotic Drugs and Psychotropic Substances Act, 1988 (Central Act No. 46 of 1988) came into force on 4th July, 1988 while the last prejudicial act attributed to the petitioner is of 17th November, 1987. It does not stand to reason as to how could the Detaining Authority invoke the provisions of this Act while ordering detention of the petitioner. It also indicates want of application of mind on the part of the Detaining Authority to the facts and circumstances obtaining in the present case and, therefore, invalidates the detention order."

(iv) Delay in disposal of the representation from 17th November, 1988 to 21st December, 1981. Dealing with similar delay of a month and 10 days in the disposal of representation of the detenu their Lordships of the Supreme Court observed in Piara Singh v. State of Punjab, 1987(2) RCR(Crl.) 473 (SC) : AIR 1987 SC 2377 , as follows :

"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 watched care and reasonable promptitude lest the safeguards provided in Article 22(5) of the Constitution and the statute concerned should be stultified and reasoned meaningless.....

In the light of these decisions in the present case it must be held that the delay in dealing with the representation of the petitioner which was admittedly received by the Government on 14th January, 1987 and rejected at late as on 26th February, 1987 must be considered as inordinate delay in dealing with the representation. No explanation is given in the counteraffidavit 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 this representation."

In this view of the matter Criminal Writ No. 266 of 1989 succeeds and is allowed. Detention order Annexure P5 based on grounds of detention Annexure P6 is quashed and the detenupetitioner Harinder Singh is ordered to be released forthwith, if not required in any other case.

JUDGMENT accordingly.