Kashmir Singh vs State of Punjab

A.L. Bahri, J.

In this writ petition under Articles 226 and 227 of the Constitution of India, Kashmir Singh claimed issuance of writ in the nature of Habeas Corpus directing the respondent State to release the petitioner who was illegally detained in Central Jail Ferozepur under orders passed by the State of Punjab, Annexure P1 on the basis of the grounds contained in Annexure P2. This order was passed under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

On March 10, 1989 the petitioner was earlier detained under aforesaid Act on the allegation that recovery of charas and brown powder (said to be heroin) from his possession was made on January 11, 1988, and January 30, 1988. Criminal cases were registered against him. The detention order made on March 10, 1989 was successfully challenged in Criminal Writ Petition No. 1552 of 1989. The order was passed on October 16, 1989. The judgment in the previous case shows that Kashmir Singh, petitioner was acquitted by the Additional Sessions Judge, Ferozepur on February 2, 1989 with respect to the case registered on January 11, 1988. Vide order Annexure P1 passed in the present case on February 13, 1991, the petitioner was detained as per grounds contained in Annexure P.2. On April 22, 1990, a search was conducted at the residential premises of the petitioner which resulted in the recovery of two packets containing 1/2 kg each of brown powder (said to be herein). A sample was sent to the Laboratory and as per report of the chemical examiner dated July 9, 1990 it contained diacetyle morphine which is an incriminating article under the Act. On that very day, the petitioner is alleged to have made a statement that the aforesaid consignment was handed over to him by the Ashu, a Muslim resident of Village Kirianwali Bhaini Tehsil Dipapur, Distt. Okara (Pakistan) two days prior to the alleged recovery and he was only to get 10% commission on the articles being delivered to one Khalil of Delhi. It was also mentioned that earlier 6 kgs. heroin was recovered from him valued about Rs. 30,00,000/ on January 30, 1988 and the Additional Collector had imposed fine of Rs. 1 lakh. The grounds for challenging the impugned order which are pressed during arguments briefly are as under :

That there was delay of about 8 months in passing the order of detention after the alleged recovery for which no explanation was offered.

That in grounds of detention served on the petitioner, there was no reference to his detention earlier effected and that the aforesaid detention was quashed by the High Court in Criminal Writ Petition No. 1552 of 1989. If the same had been taken into consideration probably impugned order would not have been passed by the authorities.

That the petitioner was released on bail on November 19, 1990 whereas the impugned order was passed on February 13, 1991. There was no allegation much less evidence that during this period the petitioner indulged in any prejudicial activity. The detention order was thus not preventive but punitive.

In the affidavit filed on behalf of the State in this Court, it has been asserted that the State was conscious about the fact that the previous detention was quashed by the High Court. Explaining the delay, it was that as to how the matter moved from one official to other. Reference has also been made to the number of holidays in between at the State level that no work to be done on such day. It is admitted that after the petitioner was released on bail, there was nothing found against him.

The alleged recovery in the present case was effected on April 22, 1990. The detention order which is impugned was passed on February 13, 1991. Thus, there is delay of about 9 months. This Court in Amrik Singh v. State of Punjab, 1987(1) RCR 443 quashed the detention order which was passed after about 8 months of the last prejudicial activity of the detenu for the time lag due to processing of case by various Authorities was not satisfactory. The delay in that case was of about 8 months. It was observed that after the last prejudicial activity, there was nothing to indicate that the detenu had tried to abscond or was no more indulging in such activity. In the absence of such a consideration the impugned order was held to be punitive than preventive. The ratio of the decision aforesaid, can squarely the applied to the case in hand as the respondent did not take into consideration the conduct of the petitioner during the period of about 9 months from the last prejudicial activity rather in the affidavit filed in response to the notice, no allegation has been made that the conduct of the petitioner during such period deserves passing of the impugned order of detention.

In reply filed by the State, it is now sought to be cleared that while passing the impugned order of detention, the fact that previous order of detention was quashed by this Court, was taken into consideration. However, this matter was not brought to prominence in the grounds of the detention which were served on the petitioner. The petitioner thus had on occasion of stress or represent the true facts that in one case in which he was involved earlier he was acquitted by the Additional Sessions Judge and that the order of detention, for the reasons recorded therein, was quashed by the High Court vide order dated October 16, 1989. The Supreme Court in M. Ahamedkutty v. Union of India and another, 1990(1) RCR 423 observed that the grounds of datention served on the petitioner without documents relied upon did not amount to due service thereof and this vitiated the detention order void ab initio. The mere fact that the detenu already knew the contents of some documents which were not supplied was of no consequence. In Avtar Singh and others v. State of Jammu and Kashmir and others, 1985 Criminal Law Journal 796, similar view was taken by the Supreme Court. In that case grounds for revocation of earlier detention order was not brought on the record. The ground of the second detention order did not indicate that the Detaining Authority was aware of the prior detention and was of the opinion that further detention was necessary in such circumstances. Detention order was passed mechanically and the detenu was entitled to release. In the present case also, the impugned order of detention, does not indicate that the State Government had taken into consideration the previous detention order on the grounds on which the same quashed.

As already noticed above, the petitioner was released on bail and before he was detained in the present case, there was indication that the petitioner was indulging in any prejudicial activity while he remained on bail. In Bhupinder Singh v. Union of India, 1989(2) All India Criminal Law Reporter 34 this Court held that there was no justification in such circumstances for clamping the order of detention.

Mr. Beri, DAG Punjab has argued that detention order could be passed even with respect to one recovery of incriminating article. Reliance has been placed on the decision of the Supreme Court in Sarawathi Sehagiri v. State of Kerala, AIR 1982 SC 1165. There is no dispute with the proposition that even on a single act committed by the detenu his detention may be called for. However, when detaining authority takes into consideration previous conduct of the detenu then the basis of the order does not remain the solitary instance recently occurred. Thus, he ratio of the decision in Saraswathi case cannot be applied to the case in hand. The State Counsel has further argued that it was the satisfaction of the detaining authority and the opinion if based on material cannot be subsituted by the Court. In support of his contention, reliance has been placed on the decision of Supreme Court in Smt. Asha Kesavrao Bhosale v. Union of India, 1986(1) R.C.R.(Criminal) 337 : AIR 1986 SC 283. The contention is that the detention order is based on the statement of the detenu himself wherein he admitted that he had negotiated with others for passing of the goods and to receive commission. The satisfaction of the detaining authority of course has to be on material as argued, however, the statement of the detenu recorded in such proceedings can only be acted upon if there is something more, which was expected, to corroborate it. Since there was sufficient time to investigate the case and collect material with respect to the person with whom the detenu had negotiated to pass on the goods on receipt of commission, such a statement recorded by the authorities may not be sufficient to make the order of detention, more so when in the present case on similar recoveries being effected earlier the detention order was quashed. On the same ground the decision of Karnataka High Court in G.K. Kantharaja Setty v. State of Karnataka, 1988 Criminal Law Journal 368 is of no help to support the detention order. It always would depend upon the value to be attached to the statement of detenu recorded by the authorities. Confessional statement of the petitioner is not considered sufficient in law to pass order of detention.

For the reasons recorded above, impugned order of detention, Annexure P1, is quashed.