Kashmir Singh vs State of Punjab

S. D. Bajaj, J.

Vide detention order Annexure P 1 dated 10th March, 1999 based on grounds of detention Annexure P. petitioner Kashmir Singh was ordered to be detained in exercise of preventive jurisdiction on grounds of having been found in conscious exclusive possession of and concealing charas and heroin of foreign origin on 11th January 1988 and 30th January 198.8 respectively. In respect of charas recovery First Information Report No. 9 dated 11th January, 1988 was registered against the detenu petitioner in Police Station Saddar, Fazilka, wherein the detenu petitioner was acquitted by the learned Additional Sessions Judge, Ferozepore, on 2nd February, 1989. In respect of the recovery of heroin of foreign origin. First Information Report No. 43 under sections 411/414 of the Indian Penal Code and section 18 of the N. D. P. S. Act was registered against the detenupetitioner in Police Station Sadar, Fazilka, on 14th February, 1988.

Validity of the detention order Annexure P. 1 dated 10th March, 1989 has been assailed on the grounds of (1) nonapplication of mind by the detaining authority to the peculiar facts and circumstances obtaining in the case of the petitioner and resultant want of its subjective satisfaction; (ii) want of nexus or proximity between the prejudicial activities of January, 1988 and the detention order dated 10th March, 1989 passed more than 1 year 2 months and 2 weeks thereafter; and (iii) of the provisions of Narcotic Drugs and Psychotropic Substances Act, enforced in July, 1988 having been invoked retrospectively in respect of prejudicial activities of January, 1988.

In reply it was asserted that the order of detention Annexure P. 1 was based on subjective satisfaction of the detaining authority based on due application of mind, that there was both nexus and proximity between prejudicial activity and the order of detention and that inordinately long time of nearly 1 year, 2 months and 2 weeks was taken by the authorities in processing the case and that the provisions of N.D.P.S. Act could ultimately be invoked while making the order of detention on both March, 1989.

I have heard Shri Bipan Ghai, Advocate, for the petitioner, Shri S.S. Saron, A.A.G. Punjab, for the State and have carefully perused the material on record.

A bare reading of the detention order Annexure P. 1 and the grounds of detention Annexure P. 2 clearly makes out that the factum of the petitioner having been acquitted in case First Information Report No. 9 dated 11th January, 1988 on 2nd February, 1989 was not adverted to by the detaining authority therein at all nor had the detaining authority considered the factum of the detenupetitioner having not been prosecuted in respect of First Information Report No. 43 dated 14th February, 1988. Commenting on this aspect of the matter in Anant Sakharam Raut v. State of Maharashtra and another, 1988(1) RCR(Crl.) 619 (SC) : AIR 1987 Supreme Court 137 their lordships of the Supreme Court observed. The one contention strongly, pressed before us by the petitioners 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 1311986, 1411986 and 1511986.

We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an undertrial 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 refrain 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 and the petitioner was granted bail when the order of detention was passed.

Want of nexus or proximity between the prejudicial activates and the order of detention. There is a time lag of one year two months and two weeks in between the prejudicial activities attributed to the detenu petitioner and the date of the detention order viz. 10th March, 1989. While examining this aspect of the matter in Amrik Singh alias Mika v. The State of Punjab and another, 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 1982 SC 682 : 1982(1) C.L.R. 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 stoodabandoned or at least have not been shown to be continuing for about 1/2 months i.e. from 721985. the date of last activity to 2211985 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.

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, 1999 (1) All India Criminal Law Reporter 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."

In this view of the matter Criminal Writ Petition No. 1552 of 1989 succeeds and is allowed. Detention order Annexure P. 1 based on grounds of detention Annexure P. 2 is quashed and detenupetitioner Kashmir Singh is ordered to be released forthwith, if not required in any other case.