Jabbar vs State of Punjab

G.S. Chahal, J.

The petitioner has come to this Court in this criminal writ petition under Article 226 of the Constitution of India for the issuance of a writ in the nature of Habeas Corpus, directing respondent to release him from illegal custody based on the order of detention passed on 31.5.1991, Annexure P 4, by the Under Secretary, Home, Department of Home Affairs and Justice, Government of Punjab.

The ground on the basis of which the petitioner was detained may be briefly enumerated from Annexure P5.

On 1.1.1991, acting on the information that huge quantity of silver was to be smuggled into India, through a train running between India and Pakistan, the Customs Preventive Staff, Amritsar kept surveillance at Amritsar Railway Station on the LahoreAmritsar Express Train. At about 2015 hours, one person was apprehended under suspicious conditions who tried to run away on seeing the Customs Staff. He was however, apprehended and thereafter the other Staff having been alerted, two other persons were apprehended. After interrogation, their identity was established. One of them was the present petitioner. On the basis of information supplied by Naseem Ahmed, one of the persons detected, that silver was concealed in "Battery Boxes" of the rake of fifth bogie from the rear. Two independent persons were joined and at the instance of the petitioner and his colleagues, silver weighting 38.660 kgs. was recovered, packed in four bandolliers of cloth, concealed in two battery boxes underneath bogie No. 11.03. This silver was taken into possession by the Customs Preventive Staff on the reasonable belief that the same had been smuggled from a foreign country into India. A search was then carried out of the National Hotel, Amritsar where the petitioner and his companions were staying and currency notes worth Rs. 148, 800/ and Indian currency worth Rs. 78,000/ were recovered from rooms No. 22 and 7 respectively of the hotel. The petitioner also suffered a confessional statement, giving details of his activities relating to smuggling.

The petitioner claims that he has been falsely implicated in the case and his statement had been obtained under coercion which was retracted by him at the first available opportunity. He had then been allowed bail by the Chief Judicial Magistrate, Amritsar on 10.1.1991. There was no allegation of his indulging in "prejudicial activities". The order of detention was passed on 31.5.1919, but served on him on 9.1.1992. The petitioner, being on bail, had been attending the Court on each date until he was detained on 8.1.1992. The detention order could not be passed with a punitive purpose.

In the return filed, the respondentauthorities have taken the plea that after collecting the entire material, proposal for detention was sponsored on 21.3.1991 which was received by the respondents on 22.3.1991. The proposal was examined for the period 27.3.1991 to 1.4.1991. Further information was called, copies were prepared and the case was again examined during the period 17.5.1991 to 21.5.1991. The detention order was passed on 31.5.1991. Details of holidays intervening this period were also given. It is further averred that strenuous efforts were made to serve the detention order on the petitioner but since he was playing hide and seek with the Police and evading the same and was not available at his residential address, as such, the detention order could not be served soon after it was passed.

Sh. H.N. Mehtani, learned counsel for the petitioner has challenged the detention on two grounds; delay in passing the same and delay in serving the same after it was passed by the detaining authority.

So far as the first argument of Sh. Mehtani is concerned, I do not find much force in it. It cannot be said that the case for detention was sponsored with respect to a stale matter. it was after collecting and examining the material on record that the proposal was sponsored on 31.1.1991. Thereafter the matter had to be examined by the legal agency and since further information was required the same was collected from the sponsoring authority. Copies of the supporting material were also prepared and after further examination, the case was ultimately put up before the competent authority on 31.5.1991. It cannot, thus be said that there was any delay in the passing of the detention order which may throw a doubt on the "subjective satisfaction" of the detaining authority.

However, the respondentState has not been able to explain the reason for not serving the detention order soon the same was passed. The petitioner was admittedly on bail granted by the Chief Judicial Magistrate and no effort has been made to serve the detention order on him through the Court. No material has bee placed on the record to show that some serious effect was infact made in this respect.

In SK Serajul v. State of West Bengal, AIR 1975 SC 1517 there was undue delay after the alleged incidents before order of detention was passed and again after the order of detention and before actual arrest of detenu. Their Lordships held that the Court could doubt the genuineness of the alleged "subjective satisfaction" of the detaining authority as the necessity of detaining him from acting in a manner prejudicial to maintenance to the community. In a Habeas Corpus Petition such delay must be satisfactorily explained in order to prove genuineness of the "subjective satisfaction" alleged by the detaining authority.

In T.A. Abdul Rehman v. State of Kerala, 1989(2) Recent CR 459 their Lordships of the Supreme Court held that when there is time lag of 11 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 examined, whether the Detaining Authority has satisfactorily explained the delay. It was further observed that the delay of 3 months in the arrest causes doubt on the genuineness of the subjective satisfaction of the Detaining Authority leading to an inference that detaining authority was not really and genuinely satisfied as regards the necessity of detaining the detenu.

In Sk. Niazmuddin v. State of West Bengal, AIR 1974 SC 2353 the delay f 21/2 months in arresting the detenu pursuant to detention order was considered to be a ground to doubt the subjective satisfaction of the District Magistrate. Since the State has not explained the delay in the detention of the petitioner after the desertion order has been passed, a genuine doubt arises with respect to the "subjective satisfaction" of the detaining authority. The same makes the grounds of detention order illegal. I hereby accept the criminal writ petition and after declaring the detention order to be illegal, order the release of the petitioner forthwith.