Kashmir Singh vs Central Govt. and Others

S.S. Sudhalkar, J.—The petitioner being detained by a detention order dated 5.9.1996 passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the ''Cofeposa'') has filed this writ petition with a prayer to quash the dentention order.

On 17.4.1995, a white Maruti Car without registration number was signalled to stop by the Customs Staff on the Goindwal Kapurthala Road but instead of stopping the car, the driver accelerated the speed and tried to flee away. The said car was given a hot chase by the Naka Party. The other naka party which was near the bridge, blocked the road which forced the said car to stop. The occupants of the car tried to run away but were apprehended by the naka parties. The occupants were Balwinder Singh alias Billa son of Amrit Singh alias Chamko and Jagjit Singh alias Jit son of Shri Wassan Singh. From the car, 110 gold biscuits were recovered from the cavity of left front door of the said Maruti Car. One gold biscuit was also recovered from the ashtray fitted in the said car. Two number plates bearing number DL-4C-D-0314 were also recovered from the back seat of the car. On weighing, the gold was found to be 12947.040 grams of 24 carat purity valued at Rs. 62,14,579.20.

Statement of Jagjit Singh alias Jit son of Wassan Singh recorded u/s 108 of Customs Act, 1962 shows that the petitioner was bringing smuggled gold from Pakistan with the help of one Lance Naik of B.S.F. through BSF Gate of B.O.P., Rajoke. Jaggit Singh also admitted that petitioner was taking Rs. 15,000/- for smuggling of 100 biscuits and he was paying Rs. 5,000/- to Lance Naik Mahabul Haque of BSF. Lance Naik Mahabul Haque also confessed in his statement that he helped the petitioner in smuggling of 111 gold biscuits from Pakistan. He also confessed that he took Rs. 5,000/- from the petitioner for allowing him to smuggle gold through the BSF Gate and Rs. 5,000/- which the petitioner had given to Mohammed Mahabul Haque, were also recovered from him. He also confessed that the petitioner approached him number of times. On 17.4.1995, the petitioner brought 111 gold biscuits through B.S.F Gate No. 157 of B.O.P., Rajoke and handed over the biscuits to Jagjit Singh alias Jit who in turn handed over the 111 gold biscuits to Balwinder Singh alias Billa and from there they started for Jalandhar and were apprehended by the Customs Naka Party.

The Detention order was passed on 5.9.1995 and it was served on the petitioner on 20.11.1995. The petitioner contends that there is delay in serving the detention order and the detention order is, thus, punitive and lacks the subjective satisfaction of the Detaining Authority. The petitioner further contends that while passing the Detention Order, the Detaining Authority had referred to the earlier detention orders dated 4.8.1992 and 17.12.1993 passed against Balwinder Singh alias Billa and he does not know for what purpose the copies of those detention orders were supplied to the petitioner. The petitioner contends that he was not in a position to know the relevance of the above said documents and also contends that the irrelevant documents were supplied to him, as a result of which he was deprived of making an effective representation against his detention.

The petitioner contends that immediately after the detention, the petitioner submitted a representation through the Superintendent, Central Jail, Amritsar. The said representation was not decided promptly and no decision had been conveyed to the petitioner so far. Because of the above reasons, the petitioner has prayed that the detention order be quashed.

Written statements have been filed by the Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi, and Superintendent, Central Jail, Bathinda.

I have heard learned Counsel for the parties.

Learned Counsel for the petitioner has raised the following points:

i) There was delay in passing the detention order;

ii) There was unreasonable delay in deciding the representation;

iii) Irrelevant documents were supplied to the petitioner.

Regarding the detention order, the factual position is as under:

The alleged incident is of 17.4.1995. The detention order was passed on 5.9.1995 and served on the petitioner on 20.11.1995.

So far as representation is concerned, the same was made on 7.4.1996. Till the Writ Petition was filed, the representation was not decided. Mr. Sandhu learned Counsel for the petitioner argued that the representation was forwarded on 15.4.1996 and it was received in the Cofeposa unit on 19.4.1996. Comments were called for on 21.4.1996. The comments were received on 30.4.1996 and the representation was rejected on 8.5.1996. (this petition was already filed on 8.4.1996). Learned Counsel for the petitioner has argued that his grievance is against the delay in deciding the representation of the petitioner by the Central Government. He argued that there is unexplained delay of one month.

Regarding documents, as stated earlier, the argument of learned Counsel for the petitioner is that irrelevant documents are supplied.

Firstly, I will take up the question of delay in making and serving the detention order. Learned Counsel for the petitioner has cited before me the case of Jagan Nath Biswas Vs. The State of West Bengal, . It has been held in that case that when there was inordinate delay in passing order of detention after the occurrence of the incidents relied on and the delay was not explained, the bona fides of subjective satisfaction of detaining authority were held to be not established.

Mr. Sandhu has also cited before me the case of S.K. Serajul v. State of West Bengal AIR 75 SC 1517. It has been held in that case that undue delay in passing the order for detention and in the actual arrest thereafter led to the doubt about genuineness of the ''subjective satisfaction'' and that the detention was quashed.

Mr. Sandhu has also cited before me the case of Rabindra Kumar Ghosel alias Buli Vs. The State of West Bengal, . It has been held therein that when a District Magistrate passed the order of detention about three months after placing the case of detention before him and when there was no explanation for the delay, the detention was held to be unsustainable.

Regarding serving of the detention order Mr. Sandhu has relied on the case of Sk. Nizamuddin Vs. State of West Bengal, . It has been held in it that when there was a delay of about two and a half months in arresting the detenu pursuant to the detention order and the delay was not explained, the subjective satisfaction was held to be not genuine.

As against this, Mr. D.D. Sharma appearing for Union of India has cited before me the case of Rajendrakumar Natvarlal Shah v. State of Gujarat and Ors. 1988 Crl. L.J. 1775. It was held therein that even in the absence of explanation for delay, the inference could not be drawn that subjective satisfaction arrived at by detaining authority was not genuine or that the grounds were stale or illusory. It was, therefore held that the order of detention was not vitiated. It was further held in that case that the mere delay in making of an order of detention under a law like the COFEPOSA enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the courts should not merely on account of delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction. It was further held that taking of such a view would not be warranted unless the court finds that the grounds are stale or illusory or that there is no real nexus between the grounds and the impugned order of detention.

In Syed Farooq Mohammad v. Union of India and Anr. 1990 (2) RCR 403, the Supreme Court has held that when it was a case of brown sugar weighing 100 kgs. having been recovered from the dickies of two cars; the statements of three persons were recorded on the next day, samples were taken, test reports were obtained and screening of all these things had to be done, it could not be said that the delay of five months in making the impugned order of detention rendered the detention illegal .

In the case of Syed Farooq Mohammad v. Union of India (supra), the delay stands completely explained. In Rajendrakumar Natvarlal Shah v. State of Gujarat (supra), the Supreme Court held that mere absence of explanation will not lead to an inference that the detention order was passed without subjective satisfaction. It was further held in that case that the direct and proximate cause for the order of detention was the importation in bulk of India made foreign Jiquor by the detenu acting as a broker from across the state border and the District Magistrate had stated in his counter affidavit that it was revealed from the statements of witnesses that the detenu was the person actually involved. In that case apprehending his arrest, the detenu applied for anticipatory bail on 21.1.1987. On that day, there was no proposal to arrest the detenu. However, later it was discovered that there was no trace of the detenu. He was arrested on 2.2.1987, On that day he made a statement admitting the facts. Meanwhile, the proposal to detain the detenu was placed before the District Magistrate and on a careful consideration of the material on record, the District Magistrate passed the order of detention on 28.5.1987. There was of course on explanation of delay between 2.2.1987 the date on which the detenu was arrested and 28.5.1987 the date of passing of the detention order.

In the present case, the alleged incident is of 17.4.1995 and the detention order was passed on 5.9.1995 and was served on the petitioner on 20.11.1995.

The respondent/UOI in this case contended that investigation was promptly completed. It has not come-forward with an explanation stating the time required for the different acts which were necessary. In this case, as stated above, the time was taken in between the alleged incident and the passing of the impugned order and again serving of the impugned order thereafter. The time taken in between the alleged incident and the passing of detention order of course is not a short one as it was in the case of Rajendrakumar Natvarlal Shah v. State of Gujarat (supra). It is obvious that mere delay without explanation will not help the detenu in getting him released in view of the above decision. However, considering all the decisions on this point, the delay in a particular case also will have to be considered and in the present case no explanation is given for delay, though Union of India has stated in paragraph 3 of the reply as to what actions were taken but they have tried to avoid giving dates of the various procedures.

Considering the law laid down by the Supreme Court on the point of delay, which can be seen from the above mentioned judgments, it cannot be held in this case that the long delay can just be ignored, when there is no explanation. This position gets an additional support because of the delay from the date of passing of the detention order and the date of its enforcement. The petitioner has contended in para 4 of the petition that delay between 5.9.1995, the date of order and 20.11.1995, is an unexplained delay in execution of the order. As against this, the respondent - Union of India has stated in its written statement that the detailed comments on the contention of the petitioner may be furnished by the Government of Punjab, the authority who had executed the order of detention. However, it is submitted that the order of detention along with the grounds of detention were received in their office on 13.9.1995 for getting the same translated in Punjabi language and the documents were re-submitted to Headquarter office after translation vide letter dated 15.9.1995. The Superintendent, Central Jail, Bathinda has filed the written statement and stated that paragraph 4 of the petition relates to Union of India/respondents No. 1 and 2. The delay in the execution of the order from the side of respondents has remained unexplained.

The cumulative effect of delay in passing the order and the execution of the same shows that there was long delay in between the date of occurrence and the arrest. Considering the overall effect of the judgments mentioned above, this delay, which is unexplained certainly proves fatal to the detention. The detention order, therefore, deserves to be quashed, on the ground of delay in passing the detention order and the execution of the same.

In view of the above finding, the other arguments of Mr. Bandhu, learned Counsel for the petitioner are not required to be considered.

In view of the above reasons, this writ petition stands allowed. The detention order is quashed. The petitioner is ordered to be set at liberty, if not required in any other case.