Khushia Bai vs State of Punjab

J.S. Sekhon, J.

Khushia Bai petitioner in this writ petition has challenged the order of detention Annexure P. I dated 1661989 passed under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, hereinafter referred to as the Act, by the State Government with a view to preventing her from indulging/engaging in the concealing and possession of narcotic drugs smuggled from Pakistan into India. The above referred detention order dated 1661989 was served upon the detenu on 171989 along with grounds of detention Annexure P2.

The brief resume of facts figuring in the grounds of detention is that in the third week of July, 1988 Mohan Singh younger brother of the husband of the petitioner along with three other persons namely Khushal Singh, Jaga Singh and Fuman Singh came to her house with one bag of Charas each and apprised her that four of these bags contained 35 packets of Charas each while the fifth bag contained 25 packets. They also apprised her and her son Mehnga Singh that this Charas was smuggled from Pakistan and was sent by her husband. They advised her to conceal these bags immediately. Accordingly, she concealed all the five bags of Charas in a Kup of Turi. On 1971488 the police of Police Station Guru Har Sahai apprehended her son and her brotherinlaw Mohan Singh along with 35 packets of Charas carried by each one of them. On their interrogation they revealed her involvement in the concealment of Charas. Thereafter she was interrogated in case FIR No 143 dated 1971988 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act of Police Station Guru Har Sahai and in pursuance of her disclosure statement she got recovered 160 packets of Charas weighing in all 178 kilograms.

Through this writ of Habeas Corpus the petitioner seeks the quashment of the said order of detention inter alia on the ground of lack of proximity between the last prejudicial activity and passing of the detention order; on the ground of time gap between the passing and service of the detention order and on the ground of nonapplication of mind by the detaining authority as the factum of the petitioner on bail, was not at all considered The solitary instance was also contended to be not sufficient for clamping the detention order.

In return filed by Shri S.K. Bhalla, Under Secretary to Government of Punjab, Department of Home Affairs and Justice on behalf of the respondents, it is maintained that the test of proximity is not to be applied mechanically by counting the time consumed in passing the order of detention from the prejudicial activities indulged in by the detenu, if this gap of time had been cogently explained. In this case the sponsoring authority was busy in verifying various links of the petitioner besides being busy in tackling law and order problem due to the activities of the terrorists in the border area of District Ferozepur. It was also maintained that due to absconding of the petitioner the order of detention was not served upon her promptly and that the detaining authority had passed the detention order. with due application of mind, and the factum of the petitioner being on bail was also considered. It was further averred that a solitary incident involving the recovery of 178 kilograms of Charas is quite sufficient for passing the detention order against the petitioner.

I Have heard the learned counsel for the parties besides perusing the records.

Regarding the solitary incident it transpires that the factum of concealment of huge quantity of Charas weighing 178 kilograms by the petitioner after having been made aware that the same has been smuggled from Pakistan clearly shows that the act was done with due deliberation and after preplanning, which in turn shows the future propensity of the petitioner in indulging in such like prejudicial activities. Thus, there appears to be no force in this contention.

Regarding the proximity between the last prejudicial activity relating to the month of July, 1988 and passing of the detention order Annexure PI on 1661989 it transpires that the petitioner was arrested on 1971988 by the police of Police Station Guru Har Sahai in FIR, No. 143 registered under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and the petitioner got recovered 178 kilograms of Charas in pursuance of her disclosure statement. Thus, it can be well inferred that on 1971988 this activity was well known to the local police. Thereafter the sponsoring authority kept on sitting over this matter till 1661989 i.e. for about little less than 11th months which remained unexplained on the file. In this regard in para No. 2 of the reply, the respondents had explained the delay as under :

"(ii) In reply to the contents of this subpara it is submitted that test of proximity is not to be applied mechanically by counting the time consumed in passing the order of detention from the prejudicial activities indulged in by the detenu. If the time taken between the last prejudicial activity and the passing of the order of detention has been properly explained then nexus between the prejudicial activity and the order of detention remains alive and there is no delay in passing the order of detention. 178 kgs. of Charas was recovered from the petitioner on 1971988. It took sufficiently long time in the investigation of the case at various levels. Petitioner was interrogated after the recovery at the Joint Interrogation Centre, Amritsar, as well as coassociates of the petitioner were also interrogated. After completion of investigations, Joint Interrogation Centre, Amritsar, sent the case to SSP, Ferozepur, for taking further action in the matter. Sufficient time was consumed at SSP level as antecedents of the petitioner and his coassociates were to be verified and various links of the petitioner had to be probed and unearthed. Supporting material was also collected. Local police also remained busy in tackling the escalated terrorist activities and various other law and order problems in this vulnerable border district of Ferozepur. After collecting the entire material SSP Ferozepur sent the proposal to District Magistrate, Ferozepur. At this level the whole material was processed and examined thoroughly and ultimately D.M. Ferozepur sponsored the proposal to State Govt. for the detention of the petitioner, which was received in the office of the Answering Respondent on 2131989. Proposal was processed and examined at various levels upto 30389. It was felt necessary to call for same additional information from the sponsoring authority and a letter dated 30389 was sent to District authorities. In the meanwhile, case was further examined. Grounds of detention in Punjabi were prepared and the same were translated into English. Number of copies of the supporting material were typed which was quite a voluminous job and consumed quite some time. Clarifications from the District authorities were received on 451989 and the proposal was reexamined in the light of the clarifications. Case was sent to State Law Department on 25589 where it was examined upto 29589. In the light of the advice of State Law Department proposal remained under examination in the office of the Answering Respondent and ultimately was put up before the competent authority who after consideration of the material on record with due application of mind passed the order of detention in respect of the petitioner on 12689 and formal order of detention was issued on 16689. During the processing of the case at State level 22nd to 26th March, 1989, 1, 2 8, 9, 13, to 16, 18, 22, 23, 29, 3041989, 1, 6 7, 13, 14, 20, 21, 27, 28 May, 1989 and 3, 4, 7, 10, 11 June, 1989 were holidays.

From the submissions made above it is clear that the case was processed with promptitude at all the stages. The time taken in passing the detention order is reasonable and has been adequately explained. There is a close nexus between the last prejudicial activity and the detention order as the case remained under active processing during this period."

A bare perusal of the above reply leaves no doubt that the explanation is vague qua the time gap taken in interrogating the petitioner and her coassociates from 1971988 at the Joint Interrogation Centre, Amritsar till the District Magistrate, Ferozepur sponsored the proposal to the State Government for detention of the petitioner under Section 3 of the Act which was received by the State Government on 21.3.1989. In other words it can be well said that the sponsoring authority took full eight months in sending the proposal to the State Government in this regard. The District Magistrate or the Senior Superintendent of Police, Ferozepur had not filed any return in order to explain this gap of eight Months between the last prejudicial activity and the sponsoring of a proposal for passing the detention order. The matter does not rest here as thereafter the State authorities consumed about three months in finalising the case at various levels. In the meanwhile the petitioner was released on bail with effect from 17th of August, 1988. It is not disputed that thereafter uptill the serving of the detention order on 171989 upon the petitioner, she had not indulged in any prejudicial activity. Thus, the above referred delay of about 11 months in passing the order of detention would certainly reflect adversely on the genuineness of the subjective satisfaction of the detaining authority as held by the Apex Court in Sk. Serajul v. State of West Bengal, AIR 1975 Supreme Court 1517 where in para No. 17 of the judgment A was held as under :

"The order of detention was made on 24th August, 1972 and it was based on the subjective satisfaction of the District Magistrate, Burdwan that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. This subjective satisfaction, as the grounds of detention furnished to the petitioner show was founded on three incidents of breaking open railway wagons and looting their contents committed by the petitioner and his associates. one was an incident on 21111971, the other was an incidents an 24111971, the third was an incident on 1511972. Though the last incident occurred on 15th January, 1972, the order of detention was not made until 24th August, 1972, and even after the order of detention was made, the petitioner was not arrested until 22nd February; 1973. There was thus delay at both stages and this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate.

"Similar view was taken by the Supreme Court in Jagan Nath Biswas v. The State of West Bengal. AIR 1975 Supreme Court 1516. holding that the inordinate delay in passing order of detention after the occurrence of the incident relied upon reflects upon the bonafides of subjective satisfaction of the detaining authority.

The observations of the Supreme Court in Gora v. State of West Bengal, AIR 1975 Supreme Court 473 are of no help to the respondent in the present case as therein in para No. 2 of the judgment after relying upon its earlier view in Golam Hussain v. Commissioner of Police, Calcutta, AIR 1974 Supreme Court 1335 and in Lakshman Khatik v. State of West Bengal, AIR 1974 Supreme Court 1264, it was held as under :

"The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. It is a subsidiary test evolved by the court for the purpose of determining the main question whether the past activities of the detenu are such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drown it. The prejudicial act of the detenu may in the given case be of such a character as to suggest that it is a part of an organised operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in the future. But in the case in hand the vague explanation of the sponsoring authority regarding the delay of about eight months in sponsoring the proposal for detention and the factum that from 1781988 when the petitioner was released on bail and uptill 171989 till she was detained under the impugned detention order, there is no prejudicial activity attributed to the petitioner to reveal that the link between last prejudicial activity and the passing of the detention order certainly stands snapped.

The Apex Court in Harnek Singh v. State of Punjab and others, AIR 1982 Supreme Court 682, in paragraph I of the judgment had dealt with a delay of 11/2 years between the last prejudicial activity and the passing of detention order as under :

"We are clearly of the opinion that offences which are said to have been committed by the detenu as far back as on 27th February, 1980 could hardly form a ground for his detention on a date as late as 10th July, 1981, the gap between the two being wellnigh a year and a half. No explanation at all has been furnished on behalf of the State as to why action under the Act was not taken at the earliest possible after the alleged commission of the offences which are the foundation of the grounds for detention. In our opinion. the charge is so stale in relation to the detention as not to have any real connection with it."

It is noteworthy that in Criminal Writ No., 305 of 1990 decided on 3041990, this Court has also, quashed the detention of Mahnga Singh son of this petitioner on the ground of inordinate delay between the last prejudicial activity of Mahnga Singh aforesaid and the passing of the detention order.

Consequently, the detention order is ordered to be quashed by accepting this writ petition. The petitioner be released from custody forthwith, if not required in any other case.