Mangal Singh vs State of Punjab and anr.

G. S. Chahal J.

Mangal Singh, petitioner has come to this Court in this criminal writ petition under Article 226 of the Constitution of India for quashing of the detention order No. 1/40/903H111 (COFLEPOSA)/1898 dated 111090, passed by the Under Secretary Home, Govt. of Punjab, Department of Home Affairs and Justice (Home III Branch), Annexure PI and grounds of detention dated 111090, Annexure P1/A.

The petitioner pleads that he was arrested in case FIR No. 114 dated 101089 U/ss 41/414/12, 216A, IPC, 25 Arms Act, 3/34/20, I.P. Act, 14 Foreigner Act and 3 Official Secret Act and FIR No. 108 dated 2980 89, U/ss 307/34/409/411/414, IPC. 25 Arms Act, 3/34/20 1. P. Act, 14 Foreigner Act, and 18/61/85, N.D. P.S. Act, registered at Police Station, Khalra. He was been taken to Interrogation Centre, Amritsar. After torturing, his tbumb impress ions were obtained on black papers. Subsequently those papers were utilised for preparing confessional statement. He was released, on bail by the trial Court. On 171190, he was again arrested and served with detention order Annexure P/1 accompanied by grounds of detention Annexure P1/A.

The facts on which petitioner''s detention had been ordered can be found described in grounds of detention Annexure P1/A and may be briefly summarised as, follows :

After spending a lot of money on criminal cases, the petitioner made up his mind for starting smuggling activities. He then contacted Satpal alias satta resident of Katra Khazana, Amritsar, a renowned smuggler who offered the petitioner a sum of Rs. 8,000/, as commission in case he brought one jacket containing 100 gold biscuits from safdal, a Pak smuggler resident of village Jahman, PS Barki, District Lahore. Safdal was already known to the petitioner. After obtaining a chit from Satpal in the name of Safdal, he returned to his house by bus. After 2 days, the petitioner crossed the IndoPak border and contacted safdal at his village. At the asking of safdal, the petitioner stayed at his house. On the following day, safdal delivered the petitioner two jackets each containing 100 gold biscuits along with a chit in the name of Satpal. The petitioner crossed over IndoPak border and went to his farm house. He contacted Satpal on the next day at Amritsar and delivered the gold biscuits to him. A week thereafter Satpal paid Rs. 15,000/ as commission to the petitioner and told him that he should bring more gold from Safdal after a period of 1/2 months. Towards the end of November 1989, after obtaining another chit from Satpal in the name of Safdal the petitioner crossed over to Pakistan and on the basis of the chit, Safdal handed over two jackets each containing 100 biscuits and the chit bearing the account of the smuggled biscuits in the name of Satpal. The consignment was again delivered by the petitioner to Satpal and the petitioner received Rs. 16,000/ as commission. Satpal told him that he would send for the petitioner whenever his presence was so required On 221289 Police Station Khalra arrested the petitioner and during interrogation, he admitted the above facts. It is on the basis of this statement that the President of India felt satisfied for ordering his detention. The petitioner challenges this detention order on the ground that there was relay in passing the detention order. The same was passed on vague grounds. The petitioner had been allowed bail and this fact was neither considered nor were copies of bail application and bail order supplied to him, thereby prejudicing his right to representation. The representation made by the petitioner had not been promptly decided and as such, the detention was illegal.

In the return, it was pleaded that the petitioner had voluntarily made a statement, giving the facts about his involvement. The case of the petitioner was referred to the Advisory Board which found that the grounds for continuation of his detention were sufficient. The petitioner, after his arrest on 121289 had been released by the Court on 31 90(sic). It was thus found necessary to pass the detention order in order to prevent him from indulging in such prejudicial activities in future. Antecedents of the petitioner were verified; supporting material was collected and the case was then referred to the District Magistrate, Amritsar. The case was then thoroughly processed and examined which consumed sufficient time. Vide letter dated 24790 the District Magistrate, Amritsar sponsored the case. The proposal remained under examination at various levels uptill 11890. The same was referred back to the authorities for seeking some clarification. Clarification wgsultimately received on 29 890 and the case was again examined, but the information, being still incomplete, further clarification was sought on 5990 which was followed by TPMs on 1990 and 13990 and the information was received on 17990 Meanwhile, the grounds of detention were prepared in Punjabi and translated into English. Other necessary copies were also prepared. Proposal was sent to The Law Department on 14 9 90 from where it was received back on 25990 and remained under examination with the Govt. upto 11090. Ultimately, after due consideration, the detention, order was passed on 111090. Details of holidays intervening this period were also given. It was also pleaded that the case was processed with promptitude at all stages and as such there was close nexus between the last prejudicial activity of the petitioner and the passing of the order of detention. It was admitted that copies of bail application and bail order had not been supplied to the petitioner for the reason that the same were not taken into consideration for passing the detention order. It was also stated that there was no prejudicial activity attributed to the petitioner during the period he remained on bail till the detention order was passed. The representation made by the petitioner and forwarded by the Superintendent Jail, Amritsar vide his letter dated 1012 90 was received in the office of the respondent authorities on 111290 and comments from the District Authorities were called for which were ultimately received on 8 190. After due consideration, the representations were rejected on 9191.

In Lakshman Khatik v. The State of West Bengal, AIR 1974 SC 1264 the order of detention was held to be invalid where it had been passed after a lapse of about 8 months from the dates of incidents. Dealing with the matter of delay their Lordship made the following observations :

"Indeed mere delay in passing a detention order is not conclusive, but we have to see the type of grounds given and consider whether such grounds could really weigh with an officer some 7 months later in coming to the conclusion that it was necessary to detain the petitioner to prevent him from acting in a manner prejudicial to the maintenance of essential supplies of foodgrains. It is not explained why there was such a long delay in passing the order. The District. Magistrate appears almost to have passed an order of conviction and sentence for offences committed about 7 months earlier. The authorities concerned must have due regard to the object with which the order is passed and if the object was to prevent disruption of supplies of foodgrains one should think that prompt action in such matters should be taken as soon as incident like those which are referred to in the grounds have taken place. In our opinion the order detention is invalid."

In Rabindra Kumar Ghosel v. The State of West Bengal, AIR 1975 SC 1408 the detention order was set aside when where there was unexplained delay of about 3 months.

in S.K. Serajul v. State of West Bengal, AIR 1972 SC 1517 there was undue delay after the alleged incidents before order of detention was passed and again after the order of detention and before actual arrest of detenu. Their Lordships held that the Court could doubt the genuineness of the alleged "subjective satisfaction" of the detaining authority as to necessity of detaining the detenu with a view to preventing him from acting in manner prejudicial to maintenance to the community. In a Habeas Corpus Petition such delay must be satisfactorily explained in order to prove the genuineness of the "subjective satisfaction" alleged by the detaining authority.

In T.A. Abdul Rahman v. State of Kerala, 1989(1) RCR(Crl.) 459 their Lordships of the Supreme Court held that when there is time lag of 11 months between the prejudicial activities and the order of detention the test as to whether the detention should be quashed on the ground of delay 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 that the delay of 3 months in the arrest causes doubt on genuineness of the subjective satisfaction of the Detaining Authority leading to an inference that detaining authority was not really and genuinely satisfied as regards the necessity of detaining the detenu.

In the present case, the process for detention of the petitioner was initiated by the District Magistrate, Amritsar about 7 months after the alleged prejudicial activity. Even thereafter, the file remained shuttling in various offices for a period of about 3 months. The explanation given cannot be accepted to be sufficient for this delay. It is admitted in the return that no other prejudicial activity had been indulged in by the petitioner after he was released on bail by the Court. A genuine doubt, thus, arises with respect to the subjective satisfaction of the detaining authority and on that basis the impugned order of detention is illegal.

There is force in the contention of the learned counsel for the petitioner that the bail application and the bail order were vital material for consideration. In case they were not considered by the competent authority, as stated in the return, this has impaired the satisfaction of the detaining authority. Copies of bail application and bail order having not been supplied, the right of the petitioner to make an effective representation has been violated under Article 22(5) of the Constitution of India.

In M. Ahmadekutty v. Union of India 1990(1) Recent Criminal Reports 423 (SC) : 1990(2) SCC 1 , their Lordships made the following observations with respect to the non supply of bail order which had been considered for passing the detention order :

"...Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration. If those were not considered, the satisfaction of the detaining authority itself would have been impaired and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those sought to have formed part of the documents supplied to the detenu with the grounds of detention without them the grounds themselves, could not be said to have been complete. We have, therefore, no alternative but to hold that it amounted to denial of the detenu''s right to make an effective representation and it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention detenu illegal and entitling the detenu to be set at liberty in this case."

This view was followed in P.U. Abdul Rehiman v. Union of India and others. 1991(1) RCR(Crl.) 589 (SC) : 1991, Cri. LJ 430 .

On the basis of the above authorities I hold that the satisfaction of the detaining authority had been impaired by the nonconsideration of the bail order and the right of the petitioner to make an effective representation had also been interfered with on account of nonsupply of the said documents.

The learned counsel has also challenged the detention order on the basis that the representation was not decided expeditiously. I am, however, of the view that this contention is without force. The representation was forwarded by the jail Authorities on 101290 and was received by the competent authority on 111291. It was necessary for the competent authority to obtain the comments of the District Magistrate and after receiving the same, the representation was decided on 9191, i. e., within a month thereof.

In view of the above discussion, I allow the criminal writ petition and set aside the impugned detention order. The petitioner be released forth with if not wanted in any other case.