Karnail Singh vs State of Punjab

J. S. Sekhon, J. (Oral)

Through this petition, Karnail Singh detenu challenges the order of his detention dated 3111990 passed under Section 3(3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short referred to as the COFEPOSA Act) with a view to prevent the detenu from engaging in the smuggling of goods from Pakistan as a carrier and also engaging in keeping and concealing smuggled goods i.e. gold biscuits. This order of detention was served upon the petitioner on 131990 alongwith the grounds of detention.

The brief resume of relevant facts figuring in the grounds of detention is that in the first week of March, 1989, Dalbir Singh etc. approached the petitioner and offered the detenu Rs. 5,000/ per trip for bringing contraband articles from Pakistan. Dalbir Singh then told the petitioner about the `Att'' fixed for the third day from that day and handed slip. On the next day, petitioner also persuaded his brother Tarlok Singh to work as a carrier on a consideration of Rs. 500/ per trip. Accordingly the detenu along with his brother Tarlok Singh crossed IndoPak border during the night and met Yaqoob son of Jal Mohammad of village Dial at the appointed place at a distance of 40/50 yards from the border and handed over the Indian currency and the ruqqa to Yaqoob, who in turn handed over 10 gold biscuits to the petitioner. The petitioner handed over five gold biscuits to his brother Tarlok Singh. Thereafter the gold biscuits were concealed by the petitioner as well as by his brother in their respective turbans and the next `Att'' was fixed for the next month. The petitioner and his brother then crossed over to India with gold biscuits and Tarlok Singh was paid Rs. 500/ by the petitioner and the former handed over five gold was paid Rs. 500/ biscuits to the latter. On the next day, the petitioner handed over these gold biscuits to aforesaid Dalbir Singh and in return received Rs. 5,000/. Thereafter in the middle of April, 1989, on the instructions of Dalbir Singh, the petitioner alongwith his brother, Tarlok Singh again went to Pakistan and brought 10 gold, biscuits from aforesaid Yaqoob. These gold biscuits were also handed over to Dalbir Singh and Rs. 5,000/ were received by the petitioner for this trip. Again in the last week of April, 1989, on the instructions of Dalbir Singh, the petitioner along with this brother Tarlok Singh went to Pakistan and brought 10 gold biscuits to India. On the next day, the petitioner delivered ten gold biscuits to Dalbir Singh at Amritsar but the latter returned five biscuits saying that those were not genuine and asked the petitioner to return these biscuits to the Pak smuggler. Dalbir Singh did not pay Rs. 5,000/ to the petitioner for this trip till the procurement of genuine five gold biscuits. The petitioner then returned to his house in village Naushehra Dhalla and informed his brother Tarlok Singh of this episode. Two or three days thereafter, the petitioner handed over those five gold biscuits to his brother Tarlok Singh for burying the same in their fields which are located close to IndoPak border. The petitioner, also instructed his brother to return the five gold biscuits to Yaqoob whose fields also adjoin the fields of the petitioner on Pakistan side. Accordingly, Tarlok Singh buried these gold biscuits in his fields. Tarlok Singh failed to deliver the gold biscuits to Yaqoob due to the vigil kept by the Border Security Force. A patrolling party of the Border Security Force recovered those five gold biscuits from the fields of the petitioner and his brother and on 2.5.1989, a case bearing FIR No. 108 for offences under Sections 411/414, Indian Penal Code, read with Section 110 of the Customs Act was got registered at Police Station Gharinda, district Amritsar. The petitioner was arrested in that case on 29.5.1989 and interrogated by the police. During interrogation by the police, the petitioner confessed having indulged in the above referred prejudicial activity which resulted in passing the above referred order of detention.

The petitioner in the petition has, inter alia, challenged the order of detention on multifarious grounds, out of which the learned counsel for the petitioner laid much stress on the ground that the detaining authority had failed to apply its mind to the facts and circumstances of the case as the grounds of detention served upon the petitioner are verbatim copy of the proposed ground of detention of the sponsoring authority. Mr S. S. Saraon, the learned Assistant Advocate General, on the other hand maintain that the grounds of detention are nor verbatim copy of the proposed ground as the proposed grounds were wetted and certain corrections were made therein.

I have perused the original record of the sponsoring authority as well as the detaining authority produced by Mr. S. S. Saraon, the learned Assistant Advocate General, under the directions of this Court.

A bare perusal of the proposed grounds of detention of the sponsoring authority, that is, Senior Superintendent of Police, Amritsar, dated 2651989 reveals that the correction therein with pen ink has been made regarding punctuation and grammatical mistakes only. A material portion of this correction involves the writing of words in consideration of Rs. 500/ instead of at the rate of Rs. 500/. In the other correction the time 10/17, PM figuring in the proposed ground of detention after the name of Tarlok Singh in connection with first prejudicial activity has been scord off inserted after the word from your house. Similarly instead of the words "you were not in the know about the quantum of currency" figuring in the first ground, it has been corrected to "did not know". A perusal of the noting on the original file further shows that the proposed grounds of detention were verbatim copy and these corrections were made by the Legal Cell Office, CID, attached with the Home Department. Thus, by no stretch of imagination the correction of grammatical mistake of English language can result in concluding that the detaining authority had not applied its mind to the facts and circumstances of the case before passing the order of detention. The apex Court in Jai Singh and others v. State of Jammu & Kashmir, 1985(2) Recent Criminal Reports 39 (SC) : 1985(1) Criminal Law Journal 527, had observed regarding similar controversy as under :

"These seven writ petitions under Article 32 of the Constitution have to be allowed on the sole ground that there has been a total nonapplication of the mind by the detaining authority, the District Magistrate or Udhampur. We had called for the records and the learned counsel for the State of Jammu & Kashmir has produced the same before us. First taking up the case of Jai Singh, the first of the petitioner before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father''s name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited. "The subject is an important member of Thereafter follow various allegations against Jai Singh, paragraph by paragraph." In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh s/o Ram Singh, resident of village Bharakh, Tehsil Reasi." Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier in changed into "you" in the grounds of detention. We are afraid it is difficult to find greater proof of nonapplication of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner."

The above referred observations of the Supreme Court reveal that in that case also, the detaining authority, that is, the District Magistrate had substituted few words only and corrected some grammatical mistakes besides having done some punctuation of the grounds of detention. Consequently it can be well said that no better case of nonapplication of mind by the detaining authority can be made.

Thus the order of detention is quashed on the above referred ground alone by accepting this Writ Petition. Petitioner be released from custody forthwith, if not required in any other case.