Nirmal Singh vs Union of India and others

V.S. Aggarwal, J.

This is a petition filed by Nirmal Singh (hereinafter described as ''the petitioner'') under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure to quash and set aside the detention order dated 21.1.1994. It has been passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

Sum and substance of the relevant facts which led to the detention of petitioner are that specific information was recorded by the Customs Department that one Ranjit Singh Rana son of Veer Singh, resident of village Naushehra, District Amritsar had 100 gold biscuits in his possession. On 17.3.1993 in the evening when Ranjit Singh Rana was about to enter his farm house, he was apprehended. On interrogation he admitted to have transported 100 gold biscuits from Pathankot and concealed the same in the house of Sakattar Singh since 28.2.1993. On 18.3.1993 search was conducted in the house of Sakattar Singh and 100 gold biscuits were recovered from the back rest of the bed. On 18.3.1993 Sakkattar Singh made a statement to the Superintendent of Customs under Section 108 of the Customs Act, 1962 that one Sohan Singh, Superintendent of Customs is known to him and was insisting upon Sakattar Singh to introduce him to some carrier of smuggled gold. He further admitted that Ranjit Singh, his nephew was working as carrier of nefarious smugglers in association with his cousin Satnam Singh resident of Jalandhar. The smuggled gold was used to be delivered to Satnam Singh. Sakattar Singh introduced Ranjit Singh to Sohan Singh who won over him and made him agree to help Customs Department in effecting seizure of smuggled gold.

Sakattar Singh also admitted that Ranjit Singh had informed him that out of 100 gold biscuits, he would offer 50 gold biscuits to Sohan Singh for seizure by the Customs Department and obtained reward. Ranjit Singh in his statement admitted that his cousin Satnam Singh had allured him in smuggling of gold in association with the petitioner. Satnam Singh had offered Ranjit Singh that for every 100 gold biscuits transported for him from Pathankot to Jalandhar, he would be paid Rs. 5,000/. Ranjit Singh used to transport the same in his Bajaj Chetak scooter to Jalandhar and delivered them to Satnam Singh and the petitioner. Since December, 1992 five such trips were made. Ranjit Singh further admitted that after concealing the gold biscuits in the house of Sakattar Singh, he had gone to Mukerian and abandoned his scooter near the Bus Stand. It was disclosed by Ranjit Singh that said scooter was bought by Satnam Singh and the petitioner had provided money and that the petitioner had developed friendship with Satnam Singh while they were together in Delhi Jail. Petitioner had invested money in the smuggling activities.

On these broad facts, the impugned detention order had been passed.

The petitioner had moved an application seeking bail with the court of Sessions at Amritsar. It was rejected on 28.8.1993. He moved another application in this Court and was granted bail on 18.10.1993.

Learned counsel for the petitioner assails the order of detention amongst other grounds alleging that there has been no proper application of mind and even correct facts were not brought to the notice of the detaining authorities.

Certain facts which necessarily have to be recapitulated can again be mentioned which have their bearing on the arguments so advanced. The petitioner had been arrested and detained. He was admitted to bail by the order of this Court on 18.10.1993. The written statement filed by the Superintendent, Central Jail further shows that he was released on bail on 5.11.1993. This fact has not been disputed by the affidavit filed by Deputy Secretary (Home), Punjab, Chandigarh. The order of detention is dated 21.1.1994 followed by the grounds of detention which were in fact served on the petitioner subsequently. In other words, on 21.1.1994 the petitioner was already released on bail.

Paragraph 2 of the order of detention reads as under :

"Now, therefore, 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 (Parliament Act No. 52 of 1974), the Governor of Punjab while being conscious of the fact that you are in judicial custody, is pleased to direct that you Nirmal Singh be detained."

The grounds of detention again refers to the same fact that the petitioner is in jail and is reproduced below :

"You were arrested on 29.5.1993 after you tendered your confessional statements before the officers of the Customs Deptt. and were produced before the Chief Judicial Magistrate, Amritsar on 30.5.1993, who remanded out to judicial custody. You are still in jail."

This fact clearly shows that though the petitioner had been ordered to be released on bail and in fact was on bail, but still the detaining authority referred to the fact in the order of detention and grounds of detention that petitioner is still in judicial custody or in jail.

On consideration of the aforesaid facts, it emerges that there was no awareness in the mind of the detaining authority that the detenu was on bail at the time when the order was passed detaining the petitioner. Cogent relevant material was absent before the said authority. This fact of nonawareness of the detaining authority in the opinion of this Court clearly establishes that the subjective decision was not arrived at by the detaining authority on consideration of the relevant material. An identical question arose before the Supreme Court in the case of Anant Sakharam Raut v. State of Maharashtra and another, 1988(1) Recent Criminal Reports 619 : AIR 1987 Supreme Court 137. In the cited case the detenu was detained in pursuance to an order dated 15.1.1986. The detenu had already been enlarged on bail. While dealing with this question in paragraph 5 the Supreme Court held that there was total nonapplication of mind and the detention order was quashed. No different are the facts of the present case. Months before the order of detention was passed on 21.1.1994, the petitioner, detenu had already been enlarged on bail while still in the order of detention and the grounds of detention, it was mentioned that the petitioner was in judicial custody. It must, therefore, follow that there was no proper application of mind and even correct facts were not considered. On this short ground, the order of detention cannot be sustained.

For these reasons, the petition is accepted and the order of detention is quashed. It is directed that the petitioner be released forthwith, if not required in any other case.