Mohinder Singh vs State of Punjab

G.S. Chahal, J.

Mohinder Singh, petitioner, who is presently confined to Central Jail, Patiala by means of this writ petition under Article 226 of the Constitution of India, seeks quashing of detention order No. 1/11/1990.3HIII (COFEPOSA)/26 dated March 15, 1991 (Annexure P1) and grounds of detention dated March 15, 1991 (Annexure P1/A).

The facts leading to the detention may be gathered from grounds of detention Annexure P/A.

The 45th Bn of BSF, Wan received an information that gold was being smuggled by the petitioner by concealing in his tractor. A special naka, was thus, laid around his fields by the BSF. On August 1, 1990 at about 1740 hours, the petitioner accompanied by another person who was driving the tractor to which a trolley was also attached left for his fields towards village Wan. A close watch was kept on the movement of their tractor. At 1800 hours, the tractor crossed the bridge on the DitchcumBundh and immediately the BSF stopped the tractor and the petitioner and his companion were asked to get down from the tractor. The Panchayat members were sent for and in the presence of independent witnesses and the petitioner, the tractor was searched. The BSF officials observed that some of the nuts fixed to the plate of the gear box on its left side were loose which gave an indication and that portion was opened. On search, some packets were found concealed therein. These packets were taken out and the details of packets were as under :

"(i) 18 packets of small size wrapped in plastic of hard material.

(ii) 4 packets of medium size wrapped in plastic of hard material.

(iii) 1 packet of medium size wrapped in plastic of hard material."

These packets on being opened were found to contain 100 gold biscuits which may be detailed as follows :

"(i) 127 gold biscuits bearing foreign makings "credit Susse 9990, 10 to as, Eassayeur Fondeur.

(ii) 42 gold biscuits bearing foreign markings "UBS/UBG 10 tolas 9990 Union Bank of Switzerland Metty Assayeu."

(iii) 115 gold biscuits bearing foreign markings, "Johnson Nathey London 1990 10 tolas."

(iv) 15 gold biscuits bearing foreign markings, "Swiss Bank Corporation 10 tolas 9990 Eassayeur Fondeur."

(v) 1 gold biscuit bearing forging marking, "Suisse 10 tolas 9990 Essayeur Fondeur."

All these gold biscuits were carrying foreign makings and these along with Ford tractor 3810 and the trolley were handed to the Customs Preventive Staff, Bhikhiwind for taking further action. The gold biscuits were got tested and were found to be of 24 carats purity weighing 24,980.00 grams, valued at Rs. 1,15,43,400/. The value of the Ford Tractor and the trolley was assessed at Rs. 1,20,000/. All these articles were taken into possession by the Customs Preventive Staff on the reasonable belief that the same had been smuggled into India from a foreign country in contravention of the provisions of Import Control JUDGMENT No. 17/55 dated December 7, 1955, as amended, read with Section 11 of the Customs Act, 1965 and under Section 13(1) of the Foreign Exchange Regulation Act, 1973, as these articles were liable to confiscation under Section 11 of the Customs Act.

On August 5, 1990, the petitioner tendered before the Superintendent Customs Prevention his statement, in which he stated inter alia that his fields are situate in the proximity of IndoPak border which is very close to actual border line where he had installed a tubewell and erected a room. He had further disclosed that on August 1, 1990 at about 1000 hours, he along with his nephew Darbara Singh son of Sardul Singh of his village left for his fields on his tractortrolley carrying fertilizer bags. The tractor was driven by his nephew Darbara Singh, who had six fertilizer bags in the trolley. The tractortrolley was first taken to his nephew''s fields where his fertilizer bags were unloaded, thereafter it was brought to his fields, where he directed his nephew Darbara Singh to park the tractor trolley at a certain place. Darbara Singh left for his fields. The petitioner''s workers started sprinkling the fertilizer in the fields. He saw a branch of "Gulabasi" (a shrub) lying at about half acre away from his tubewell towards the border. He made out that Pakistani carriers had buried the contraband in the previous night at the fixed place. The gold was buried at about 2 yards away from twing/branch of "Gutabasi" in his paddy fields. He dugged out the buried gold and hid it beside his tractor and put all the gold packets into the gear box which was full of mobil oil. He was free of his work at 5.00 p.m. When his nephew Darbara Singh was returning back home, he called him and asked him to drive the tractortrolley back home. When he along with his nephew reached the DCB riding on the tractortrolley he was stopped by the BSF naka party. The BSF enquired him whether the tractor contained any contraband goods. His nephew replied in the negative. On conducting the search of the tractor in his nephew and panchayat member''s presence, who were called by the BSF from village Wan, 300 gold biscuits of foreign markings were recovered. He had further disclosed that smuggling was his profession ever since he came of age. He had further stated that on August 1, 1990, before the recovery a close associate of Puran Singh alias Pura of Malluwal, whose name has never been told to him, came to him and directed him to keep vigil at his tubewell, because the gold would be buried during the next 56 days on any night by Pakistani carriers. He further directed the petitioner to handover that gold after retrieving it from his fields to Gurdip Singh of Khabbe Rajputan or his associate cousin. On August 1, 1999, Gurdip Singh''s above said cousin himself came to his house and informed him that the gold had been buried the previous night by Pakistani carriers and that he must keep it in his house after retrieving from his fields on the same day, and that he would collect the said gold from the next day i.e. August 2, 1990.

The petitioner was arrested by the Customs Preventive Staff and produced before the CJM Amritsar, on August 4, 1990, and was remanded to judicial lock up. The petitioner having moved an application on October 1, 1990 was ordered to be released by the Additional Sessions Judge, Amritsar, vide order dated October 3, 1990 on furnishing of surety bond in the sum of Rs. 50,000/ with two sureties in the like amount to the satisfaction of CJM, Amritsar and the petitioner was released on October 3, 1990. Darbara Singh corroborated the statement of the petitioner in his statement dated August 3, 1990.

On November 11, 1990, 45 Bn BSF, Wan, seized another consignment of 380 gold biscuits foreign origin weighing 44.308 kgs valued at 1,48,43,180/, and four persons were apprehended; one of them namely Tarsem Singh tendered his statement dated November 15, 1990 and stated that the consignment of 380 gold biscuits was to be handed over to Mastan Singh alias Goonga and Mastan Singh was further to handover the same to the petitioner. After issuing of summons, the petitioner did not appear to make his statement. On account of the abovesaid activities, the President of India felt satisfied that the petitioner had been engaging in transporting of smuggled goods, and, therefore, impugned order of detention was passed.

Sh. Amar Singh Sandhu, who appears for the petitioner, has challenged the validity of the detention order on two grounds : firstly that there was a delay in passing of the detention order and there was further delay in execution of the order. The first prejudicial activity taken into consideration is August of 1990, and the second is dated November 11, 1990 and the detention order passed is dated March 15, 1991 and the petitioner was detained on March 23, 1992.

The respondent, in the return, gave the following facts relating to the matter of passing of the detention order and the delay in the matter of executing the same :

"From the petitioner, 300 gold biscuits of foreign origin were recovered on 1.8.1990. It took sufficiently long time in the investigation of the case at various levels, as the antecedents of the petitioner and his coassociate were to be verified and various links of the petitioner had to be proved and unearthed. After collecting and thoroughly examining the entire material on record, the sponsoring authority sponsored the proposal on 22.1.1991 to the State Government for the detention of the petitioner which was received in the office of Answering Respondent on 24.1.1991 and the proposal was examined by the legal agency from 25.1.1991 to 29.1.1991. Some additional information was called from the sponsoring authority vide State Government letter dated 21.2.1991. In the meanwhile, case was further examined and the original grounds of detention in Punjabi were prepared and the same were translated into English. Number of copies of supporting material were typed which was quite a voluminous job and consumed sufficiently long time. The case was again examined on 28.2.1991 by the legal agency in the light of information recovered from the sponsoring authority vide his letter dated 26.2.1991 received in the office of Answering Respondent No. 28.2.1991 and ultimately the proposal for passing the detention order of the petitioner was sent to the State Law Department on 6.3.1991 where it remained under examination till 11.3.1991. In the light of observation of State Law Department, the proposal remained under examination in the office of Answering Respondent and ultimately after consideration of the material on record, with due application of mind, the order of detention was passed by the competent authority on 4.3.1991 and formal order was issued on 15.3.1991. During the processing of the detention proposal, 4/8, 5/8, 11/8, 12/8, 15/8, 18/8, 19/8, 25/8 and 26.8.1990, 1/9, 2/9, 9/9, 15/9, 16/9, 22/9, 23/9, 29/9 and 30/9/1990, 2/10, 4/10, 6/10, 7/10, 13/10, 14/10, 18/10, 20/10, 2/10, 27/10 and 28.10.1990, 1 to 4/11, 10/11, 11/11, 17/11, 18/11, 22/11, 24/11 and 5.11.1990. 1/12, 2/12, 8/12, 9/12, 15/12, 16/12, 22 to 25/12, 29/12 and 30.1.1990, 5/1, 6/1, 12/1, 3/1, 19/1, 20/1, 26/1, 27/1 and (sic), 2/2, 3/2, 9/2, 0/2, 12/2, 16/2, 17/2, 23/2 and 24/9/1991, 1 to 3/3, 9/3 and 10.3.1991 were holidays.

That the contents of para No. 6 of the petition are admitted to the extent that the detention order is dated 14.3.1991 and the petitioner was detained on 30.3.1992. The contents of the rest of the para are wrong and hence denied. The procedure for getting the bail cancelled is a cumbersome procedure and may not be fruitful in each and every case. So, as regard the contention of the petitioner that the Answering Respondent did not apply for cancellation of his bail it is submitted that the move for cancellation of bail is neither necessary nor fruitful. In this case an omission to make such move does not affect the order of preventive detention. There is genuineness of the subjective satisfaction of the detaining authority for detaining the petitioner as a preventive measure.

Strenuous efforts were made to serve the order of detention but the petitioner was playing hide and seek with the police. Ultimately the petitioner was arrested on 30.3.1992. Hence, there is no delay in executing the detention order."

The proposal was sponsored for the first time on January 22, 1991, i.e. to say more than 51/2 months from the first prejudicial activity and three months after the second prejudicial activity complained of. Even after moving of this proposal, no promptness has been shown, the proposal remained lingering at various stages for almost two months and even after passing of the order the same was not executed for more than a year. It is also difficult to appreciate the plea of the respondent that the cancellation of the bail is a cumbersome procedure and may not be fruitful in each and every case. Obviously, the petitioner being on bail, his presence could have been ensured by moving the Court from where he was bailed out.

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 date of incidents. Dealing with the matter of delay, their Lordships 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 incidents like those which are referred to in the grounds have taken place. In our opinion, the order of detention is invalid."

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

In Sk. Serajul v. State of West Bengal, AIR 1975 SC 1567 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 detaining authority as to the necessity of detaining the detenu with a view to preventing him from acting in a manner prejudicial to maintenance to the community. In a Habeas Corpus Petition such delay must be satisfactorily explained in order to prove genuineness of the `subjective satisfaction'' alleged by the detaining authority.

In T.A. Abdul Rahman v. State of Kerala, 1989(2) RCR 459 their Lordships of the Supreme Court held that where 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 could 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 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 Sk. Nizamuddin v. State of West Bengal, AIR 1974 SC 2353 the delay of 21/2 months in arresting the detenu pursuant to detention order was considered to be a ground to doubt the subjective satisfaction of the District Magistrate.

The observations quoted above support the argument that the delay in passing the detention order gives rise to a genuine doubt with respect to the subjective satisfaction of the detaining authority.

I hereby accept the petition and quash the order of detention (Annexure P1) and grounds of detention (Annexure P1/A) on the basis of which the detention order was passed. The petitioner shall be released forthwith.