Kimti Lal vs Secy.to Govt.of Pb.

S.S. Grewal, J.

This petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Code'') relates to quashment of detention order dated 8.4.1993 (Annexure P1) passed against the petitioner for engaging in concealing smuggled goods, in exercise of the powers conferred by Subsection (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA with a view to prevent the petitioner from indulging in said prejudicial activities in future.

According to the petitioner, he was arrested on 23.7.1992 under Section 104(1) of the Customs Act, 1962 by the Customs Authorities. Thereafter, he was tortured and his thumb impressions were obtained on some plain papers which were later on used for his alleged confessional statement on the basis whereof detention order was passed, even though, the petitioner was released on bail on 25th July, 1992 by the Ilaqa Magistrate, Batala. It was further pleaded that from the date the petitioner was released on bail till the impugned detention order was passed, the petitioner did not indulge in any prejudicial activity; that there is no likelihood of the petitioner indulging in criminal acts of smuggling and that the impugned detention order dated 8.4.1993 was passed by the detaining authority on the basis of the alleged confessional statement of the petitioner without any subjective satisfaction. It was next pleaded that the petitioner has neither been served with the detention order nor with the ground of detention or report/proposal prepared by the sponsoring authority and as such the impugned order of detention passed against the petitioner is illegal; that just to make the retraction ineffective the Customs Authorities again summoned the petitioner on 23.9.1992 and asked him to make a statement to the effect that his previous statement made on 23.7.1992 was correct. The petitioner sent representation to the Collector of Customs, Chandigarh on 24.9.1992 that his statement dated 23.9.1992 was not a voluntary statement and was obtained under threats. It was further pleaded that the detention order has been passed for extraneous reasons and for wrongful purpose i.e. detention of the petitioner in jail inspite of the fact that he had already been released on bail under the orders of the Court and had not indulged in any prejudicial activity; that the order of detention is neither bona fide nor of a preventive nature as contemplated by COFEPOSE Act and that order of detention, was passed to circumvent the judicial process, in order to keep the petitioner in custody after he had been granted bail by the trial Magistrate and the said order is punitive in nature. It was next pleaded that the impugned order of detention was passed after the alleged recovery of 7 gold biscuits on 23.7.1992 i.e. after 8 months and the impugned order of detention is vitiated on the ground of lack of promptitude and unexplained delay between the prejudicial activities and passing of the impugned orders, which shows that the detaining authority had not applied its mind while framing grounds of detention and copies them from the grounds of detention already prepared by the Customs Authorities. This further shows lack of subjective satisfaction on the part of the detaining authority. It was next pleaded that the detaining authority did not consider the telegrams sent by the wife of the petitioner and the retracted confession made through the representation by the petitioner on 24.9.1992. It was also asserted that the impugned order of detention and grounds of detention are illegal vague, arbitrary, contrary to the wellsettled proposition of law and are liable to be quashed.

In reply the respondents took preliminary objection that the impugned detention order dated 8.4.1993 has not been served on the petitioner and the present petition was liable to be dismissed as premature. Most of the allegations made by the petitioner were denied except that the petitioner after his arrest on 24.7.1992 was released on bail by the Ilaqa Magistrate on 25.7.1992. It was pleaded that the petitioner voluntarily made confessional statement and that the petitioner used to sign his statements and not to affix his thumb impressions. Other averments of the petitioner that he was tortured or that his thumb impressions on the blank papers were obtained and later on used for his confessional statement were specifically denied by the respondents. The allegations now made by the petitioner are clearly an after thought and devoid of truth. It was next pleaded that the antisocial elements like the petitioners cannot be given a licence to indulge in smuggling of gold and play havoc with the society and as such his personal liberty cannot be allowed to the detriment of the public at large and the impugned order of detention has been rightly passed in accordance with letter and spirit of the preventive law and that the grant of bail was not the sole factor in forming an opinion regarding the detention of the petitioner, who was indulging in smuggling activities. It was submitted that the detaining authority was subjectively satisfied that the petitioner, if not detained was likely even in future to indulge in prejudicial activities in view of his prima facie propensities towards such like activities. It was asserted that grounds of detention were prepared by the detaining authority with due application of mind and on the basis of subjective satisfaction and not on the basis of confessional statement of the petitioner and that the petitioner is intentionally evading the execution of the detention order in spite of the fact that strenuous efforts were made to serve the petitioner with the detention order and grounds of detention. It was also pleaded that the representation of the petitioner dated 29.7.1992 was made after a gap of 4 days from the date of effecting seizure of 7 gold biscuits and the same is an afterthought. The representation was found to be baseless after thorough scrutiny. The petitioner made voluntary statement on 23.9.92 under Section 108 of the Customs Act, 1962 in presence of Superintendent Customs at Pathankot and retraction was made with a view to escape the clutches of law. It was denied that the petitioner made his statement dated 23.7.1992 under duress. Rather it was pleaded that the said confessional statement was voluntary. Receipt of any telegram from the petitioner or his wife was denied nor the contents thereof were communicated to the respondents by the Governor of Punjab. It was pleaded that the impugned detention order is bona fide and is of a preventive nature as contemplated by the COFEPOSA Act. It was further pleaded that there is no mechanical test for counting the period/interval between the criminal activity and order of detention contemplated under the COFEPOSA Act; that the detention of the petitioner is valid as the proposal for detention has been sponsored on 11.1.1993 by the sponsoring authority to the State Government. The same was received in the office of the Secretary to Government of Punjab, Department of Home Affairs and Justice, Civil Secretariat, Chandigarh (hereinafter referred to as the Secretary) on 14.1.1993. After examining the proposal by the local agency on 15.1.1993 some additional information was called from the sponsoring authority vide letter dated 21.1.1993. Meanwhile the case was further examined and original grounds of detention in Hindi were translated into English. It was quite voluminous and consumed sufficiently long time. The case was again examined on 22.2.1993 by the legal agency in the light of information received from the Sponsoring authority vide letter dated 17.2.1993 in the office of the Secretary on 18.2.1993. Information sent by the sponsoring authority vide letter dated 12.3.1993 was again considered in the office of the Secretary and after examination by the legal agency on 17.3.1993 proposal for passing of detention order was sent to the State Law Department where it remained under examination. Ultimately after consideration of the material on the record, the impugned order of detention was passed by the competent authority on 8.4.1993. It was next pleaded that there was a close nexus between the prejudicial activity indulged in by the petitioner and the detention order as the case remained under processing during this period; that the impugned order of detention is valid in law as it had been made to prevent the petitioner from indulging in smuggling activities which are prejudicial to the interest of the State. The detaining authority passed the impugned order of detention without any delay on the material on the record and with application of mind and on the basis of its subjective satisfaction. The said order is bona fide, preventive in nature as contemplated by the COFEPOSA Act. It was further pleaded that the petitioner is on bail and is playing hide and seek with the police and intentionally evading the execution of detention order. Application for cancellation of the bail granted to the petitioner was submitted in the trial Court but the same was dismissed. It was denied that the grounds of detention were copies from the grounds supplied by the sponsoring authority and it was further pleaded that the grounds of detention are valid. Thus the detention of the petitioner is very much genuine keeping into consideration his involvement in nefarious activity of smuggling gold. The said involvement was even admitted by him in his voluntary statement made on 23.7.1992 and 25.7.1992. It was next pleaded that there was sufficient material with the sponsoring authority for detention of the petitioner and the detention order was passed by the competent authority after taking into consideration the recovery of gold from the possession of the petitioner and his confessional statement. Thus the order of detention is legal. It was also pleaded that the detention order was within time as there is complete proximity between the prejudicial activity and the grounds mentioned in the detention order.

The learned counsel for the parties were heard.

The learned counsel for the petitioner contended that the order of detention was invalid as the same has been passed by the competent authority after eight months from 23.7.1992 when the petitioner was arrested under Section 104(1) of the Customs Act, 1962 by the Customs Authorities and recovery of seven gold biscuits was allegedly effected from his person.

The petitioner was released on bail on 25.7.1992 and after the passing of the order of detention he has not been arrested so far. All these circumstances clearly show that there was every reason to doubt the alleged subjective satisfaction of the detaining authority as to the necessity of detaining the petitioner with a view to prevent him from indulging in prejudicial activity such as smuggling of gold. The impugned order of detention is invalid because of the unexplained delay of eight months in taking preventive action and cannot be legally sustained.

I am fortified in my view on this point by the authorities of the Apex Court in Lakshman Khatik v. The State of West Bengal, AIR 1974 SC 1264, Rabindra Kumar Ghosel v. The State of West Bengal, AIR 1975 SC 1408, S.K. Serajul v. State of West Bengal, AIR 1975 SC 1517 as well as the Single Bench authority of this Court in Tarsem Singh v. Union of India and another, 1992(2) Recent Criminal Reports 177 , on this aspect of the case.

It is true that in view of the authority of the Apex Court in T.A. Abdul Rahman v. State of Kerala, 1989(1) Recent Criminal Reports 459 , quashment of order of detention on the ground of delay between the prejudicial activity and the order of detention is not a rigid or mechanical test by merely counting the number of months. The Court should examine whether the detaining authority has satisfactorily explained the delay. It was further observed in T.A. Abdul Rahman''s case supra that the delay of three months in the arrest causes doubt on the genuineness of the subjective satisfaction of the detaining authority leading to the inference that the detaining authority was not really and genuinely satisfied as regards the necessity of detaining the detenu.

In the instant case, the explanation furnished in the return filed on behalf of the State, indicates that the sponsoring authority took about 51/2 months to sponsor the proposal to the State Government on 11.1.1993 after the arrest of the petitioner on 23.7.1992 under Section 104(1) of the Customs Act, 1962, concerning the recovery of seven biscuits of gold. The proposal was received by the detaining authority on 14.1.1993 and thereafter it again took about 23/4 months before the order of detention was passed by it. Even after taking into consideration the number of holidays during this period, no plausible explanation has been put forth as to why it took eight months before passing the impugned order of detention against the petitioner when the latter had been arrested on the charge of smuggling gold as early as 23.7.1992. It is quite obvious that there is no close nexus between the alleged prejudicial activity indulged in by the petitioner and the detention order in this case and the said order has been passed by the detaining authority without due application of mind and without reaching any subjective satisfaction. It is quite obvious that the purpose of passing the detention order was to keep the petitioner in custody even after he had been bailed out by the Court and this would amount to punitive action which is quite contradictory to preventive action authorised under the provisions of COFESPOSA Act. As such the order of detention has been passed for extraneous reasons and wrongful purpose.

For the foregoing reasons, I hereby quash the detention order passed against the petitioner on the basis of prejudicial activity in respect whereof he was arrested on 23.7.1992. This petition is accordingly allowed.