Mastan Singh vs State of Punjab

A.P. Chowdhri, J.

This is a petition under Article 226 of the Constitution of India quashing order of detention. dated 131989, Annexure P. I passed under section 3 of the Prevention of Illicit Traffic in Narcoties Drug and Psychotropic Substances Act, 1988 (hereinafter referred to as the Act). The necessary facts are as follows :

The petitioner was arrested on 3061988 in case FIR No. 121 dated 3061988 under sections 307, 148 and 149 of the Indian Penal Code, 25/27 of the Arms Act, and 5/6 of the Terrorist & Disruptive Activities (Prevention) Apt relating to Guru Har Sahai District Ferozepur in the State of Punjab. During, investigation, he was sent to join interrogation centre Amritsar where he is alleged to have made a detailed confessional statement. Even though the petitioner was in custody in connection with the aforesaid case a detention order Annexure P. I dated 131989 under section 3 of the Act was served on him on March 4,1988 along with the grounds of detention Annexure P. 2. On the same day, the Central Government, was informed regarding the detention. In compliance with the provisions of section 3(2) of the Act, reference was made to the Advisory Board constituted under section 9 of the Act on 1731989. The opinion of the Advisory Board is expected and further action will be taken on receipt of opinion of the Advisory Board.

In the meanwhile, the petitioner has challenged the order of detention on various grounds.

After hearing the learned counsel for both the sides, I am of the view that the order of detention cannot be sustained. It will be convenient to deal in some detail with the primary ground which has prevailed with me. It will be sufficient to deal with the remaining grounds briefly. The admitted facts are that the petitioner was in custody in connection with case FIR No. 121 since June 30, 1988. It is further not disputed that he had not applied for bail in that case when the order of detention was passed and served on him. All that was stated in para 5 of the return was that it was learnt from reliable sources that the petitioner was taking effective steps to get himself released from custody. It was further stated therein that keeping in view the antecedents of the petitioner and his propensity towards indulging in prejudicial activity in the event of his release, it was considered necessary to pass the order of detention. Obviously the petitioner could secure his release from custody only by applying for bail or the police submitting a cancellation report in the case and requesting the Court to discharge the accused. In both the situations, the State will be directly in the picture. The application for bail could be opposed and in any case if the investigation was proceeding towards cancellation of the case, there was no difficulty for the detaining authority considering the relevant material in recording this fact in the decision to detain the petitioner. I have seen the original file where the Financial Commissioner (Home) has not made reference to any such development in the investigation of the case. Learned counsel appearing for the State could not point out that the petitioner ever made an application for his release on bail. It is settled law that where the detenu is already in custody in connection with a criminal case against him, the order of detention must show two facts: (i) awareness of the detaining authority that the detenu is already in custody, and (ii) that even then there are compelling reasons justifying the issuance of detention order. Reference in this connection may be made to Ramesh Yadav v. District Magistrate, Etah, AIR 1986 Supreme Court 315 and Vijay Kumar v. Union of India, 1988 Recent Criminal Report 602 : AIR 1988 Supreme Court 934. The first of these conditions is satisfied in the present case as the order of detention shows in paragraph 2 that the detaining authority was aware of the fact that the detenu was in custody. The second condition is not at all satisfied. What is stated in this behalf in the detention order is that the detenu had been taking steps to get himself released from the custody as per information received from "reliable sources" and that there was every likelihood of his being released from custody in which case he was likely to resume activities of indulging in transportation of narcotic drugs. This is a meaningless recitation of words because, as stated above, even the State does not dispute that the detenu never applied for bail in the criminal case against him. Learned counsel for the State was unable to offer any plausible explanation for omission to comply with the above conditions. He was unable to independently show that there was any compelling reason for passing the detention order even though detenu was already in custody in the criminal case.

The next ground urged by the learned counsel for the petitioner is that the Act was preceded by an Ordinance of the same title which came into force on 471988. He pointed out that according to the detaining authority the alleged prejudicial activities related to the period May/June, 1988 i.e. before the promulgation of the Ordinance. His contention is that the order of detention could not be passed in connection with the objectionable activities relating to a period prior to the promulgation of the Ordinance itself. In support of his contention learned counsel for the petitioner referred to Jasbir Kaur v. Union of India, 1988(2) CLJ (C & Cr. and Revenue) 91 for the proposition that where the prejudicial activity of the detenu related to a period prior to the coming into force of the Ordinance the same could not be taken into consideration for passing a detention order. In Jasbir Kaur''s case (supra) the learned Judge referred to his earlier decision in Banta Singh v. The State of Punjab and another, 1989(1) All India Criminal Law Reporter 158. A reading of the two decisions shows that it was in the context of application of mind on the part of the detaining authority that some observations which appear to support the above contention of the learned counsel were made. In my considered view, no observations were made nor can it be laid down as a proposition of law that prejudicial activity prior to the coming into force of the Ordinance could not form a basis for passing the order of detention. The title of the Act itself is the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, The preamble of the Act is to provide for detention in certain cases for the purposes of preventing illicit traffic in narcotic drugs and psychotropic substances and matters connected therewith. The definition of illicit traffic in clause (e) of section 2 shows that the expression has been given a very wide meaning and it takes into its sweep even persons who are not directly connected with illicit traffic of narcotic drugs and psychotropic substances. For instance, even handling or letting any premises for carrying on any such activity is also included in the expression illicit traffic. Under section 3 of the Act are given the grounds on which the order of detention can be passed. What is required is that the detaining authority must be satisfied that it was necessary to detain the person with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances. In the context and scheme of the Act, therefore, the requisite satisfaction i.e. a reasonable anticipation based on past conduct is to be formed by the detaining authority. If this were not so the Act as well as the Ordinance which preceded it will be largely still born at least for a considerable period. This could not be the intention of the Act. I have, therefore, no difficulty in rejecting this contention.

The next ground of attack of the learned counsel is that no case had been registered against the petitioner under the provisions of the earlier Act. i.e. Narcotic Drugs and Psychotropic Substances Act, 1985. The obvious suggestion is that if the allegation made in the grounds had any substance the authorities could recover narcotic drugs or psychotropic substances from the possession of the petitioner and register a case under the aforesaid Act of 1985 against him. I do not find any substance in this contention. It was precisely to meet a contingency where the person could not be successfully prosecuted for want of evidence under the Narcotic Drugs and Psychotropic Substances Act, 1985, and yet the detaining authority on the basis of the material collected against the detenu was satisfied that it was necessary to detain him for preventing him from indulging in illicit traffic in narcotic drugs and psychotropic substances; that the present Act was enacted even though the 1985 Act was already on the statute book. In any case, the registration of a criminal case whether under the Narcotic Drugs and Psychotropic Substances Act, 1985, or any other Act is not a condition precedent for passing of order of detention. I, therefore, reject the contention.

The next ground taken by the learned counsel for the petitioner is that the said prejudicial activity reportedly related to the months of May/June, 1988, and the order of detention was passed on 131989. His contention is that there was no nexus between the prejudicial activity and the order of detention. Reliance was placed on Amrik Singh alias Amrik Singh alias Meeka v. State of Punjab, 1987(1) Recent C.R. 443. This authority is of no assistance to the petitioner for the simple reason that a vague and general explanation was rendered on behalf of the State in explaining the delay as mentioned in paragraph 3 of the report. The decision is thus distinguishable on facts from the present case. In the case under consideration, a detailed explanation has been given in paragraph 1 of the reply. It deserves to be highlighted that apart from other facts it was stated therein that the police remained busy in tackling accelerated terrorist activity in the border district of Ferozepur and disturbed law and order situation. definite dates were given when the case moved from one functionary to another in connection with its processing. None of the steps in the course of processing the case appears to be unnecessary or made up. In fact, if the case is not thoroughly processed the grievance can easily be that the detaining authority had not consulted the various functionaries connected in the chain which is normally supposed to provide the feedback to the detaining authority. The settled law on the point is that no hard and fact rule as to the length of time between prejudicial activity and the order of detention can be laid down and every case has to be examined on its own facts. Reference in this connection may be made to Shiv Ratan Makim v. Union of India, 1986(2) Recent Criminal Report 470 : AIR 1986 Supreme Court 610 roran Rajendra Kumar Natvarlal Shad v. State of Gujarat and others, 1988(2) RCR(Crl.) 73 (SC) : AIR 1988 Supreme Court 1255. In Rajendra Kumar''s case (supra) their Lordships of the Supreme Court pointed out the distinction between delay in complying with the procedural safeguards under Article 22 (5) of the Constitution on the one hand and the delay between the prejudicial activity being noticed and order of detention being passed on the other hand. Their Lordships observed that the Courts should not merely on account of delay in making the order of detention assume that such delay if not satisfactorily explained must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Their Lordships added that taking of such a view would not be warranted unless the Court finds that the grounds are "stale or illusory or that there is no real nexus between the ground and the impugned order of detention". Their Lordships overruled the various decisions noted in the judgment. There is absolutely nothing in the facts of the present case to warrant the conclusion that the grounds are stale or illusory. In fact, in my view, the State has satisfactorily explained the time taken for passing the order of detention. This ground is also, therefore, repelled.

The next ground taken by the learned counsel is that the grounds of detention were vague. The primary contention is that specific dates were not mentioned in the alleged prejudicial activities in various paragraphs of the grounds of detention Annexure P.2. The only probable period of the week, month and year was mentioned. I find no merit in this contention. Grounds have been specified in all necessary details and the time of the prejudicial activity has been particularised as nearly as the facts admitted. If a particular date is not known it is idle to expect that a particular date will be mentioned. Let alone a case of detention, even in Sessions trial including murder cases it is enough to state in the charge that the accused had committed a certain offence on or about a date or during a certain specified period. I, therefore, reject this ground as well,

In the result, the order of detention is quashed but in effect the detenu cannot be set free. He is to revert to judicial custody in connection with his case FIR No. 121 dated 3061988 of P.S. Guru Har Sahai, District Ferozepur, from where he was placed under detention.

It will be open to the detaining authority to consider the case and pass an appropriate order if at a later stage the petitioner tries to secure his release from custody in the aforesaid case. This will, however, be according to law.