Paramjit Singh vs State of Punjab and anr.

G.S. Chahal, J.

Paramjit 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. 1/22/903HIII (COFEPOSA)/726 dated 22.4.90, Annexure P1 and grounds of detention, Annexure P1/A and the confirmation order No. l/12/903HIII(COFEPOSA)/827 dated 15.5.91 Annexure P2.

The petitioner was working as a porter (Coolie) at Attari Land Customs Station, Attari, District Amritsar. On 30.10,89, he was arrested u/s 104(1) of the Customs Act by the Customs Authorities. The facts leading to his arrest, as borne out from the grounds of detention Annexure P1/A, may be briefly enumerated.

On 27.10.89 at about 13.35 hours, one Maruti van, white colour, registration No JKS5464, which was being driven by Parveen Kumar and carrying one passenger named Chand Beg, was checked and it was found to contain numerous Thellas and trunks. On enquiry, Chand Beg disclosed that these goods belonged to two passengers who were following another car. Meanwhile, a taxi carrying Mohd. Yusuf and his wife Smt. Hamsari Begum along with their child, aged 3.4 years, was detected, Mohd. Yusuf claimed that the goods had been brought by them from Pakistan. The alas and trunks were opened and the following goods were found :

"1. Textiles of foreign origin 3900 mts. valued at Rs. 78,000/.

Badam Giri 95 kgs. valued at Rs. 5,500/

Munnaca 110 kgs. valued at Rs. 5,500/

L. B. Maxi 30 pieces valued at Rs. 750/

L. B. Shirts 25 pieces valued at Rs. 250/.

Soap Cakes 17 pieces valued at Rs. 35/.

Pak currency (500x6=3,000/) equivalent to Indian currency Rs. 2,400/."

Chand Beg and Mahd. Yusuf failed to produce any legal documents, supporting acquisition, possession and transportation of goods. The goods were seized u/s 110 of the Customs Act. Chand Beg tendered his statement before the Superintendent, Customs Preventive and disclosed that on 271089 he had gone to Wagha Border to receive Mohd Yusuf, his wife Smt. Hamsari Begum and their child. He had arranged their clearance through the petitioner. The petitioner had informed Chand Beg at about 13.10 hours about the arrival of Mohd. Yusuf and his wife. As per prearrangement, the petitioner had hired Maruti van No. JKS5464 and took the same to the Customs House towards the IndoPak border and about 10/15 minutes thereafter, the Maruti van came loaded with the aforementioned goods. When the van came out of the Customs area, the Petitioner informed Chand Beg to reach Amritsar with the goods in the Maruti van and that Mohd. Yusuf and his wife would follow him in another taxi after clearance from the Customs House. Chand Beg further disclosed about his sending persons to Pakistan for bringing goods and paying to the petitioner Rs. 2,500/ per passenger for sending persons to Pakistan and Rs. 3,000/ per passenger on their return. He had made these payments with respect to Asaf Ali and another of Delhi for their journey to and from Pakistan. He had also paid Rs. 5,000/ to the petitioner, regarding Mohd. Yusuf and his wife on their journey to Pakistan and he was to pay Rs. 3,000/ per passenger to the petitioner on their return journey.

On 301089 and 311089 the petitioner made a statement to the Superintendent, Customs Preventive wherein he gave the version corroborating the version of Chand Beg. On 22390 the order Annexure P1 was passed for detention of the petitioner, on the ground that he had been arranging the smuggling of goods and with a view to preventing him from indulging in the aforesaid prejudicial activities, it was necessary to detain him. Sh. A. S. Sandhu, learned counsel for the petitioner challenges the detention order on the ground that there was a time lag between the actual offence and the detention order. The representation filed by the petitioner had been decided with delay. The detention order had been executed with inordinate delay and that the petitioner was not furnished with copies of grounds for bail and the bail order so as to enable him to make an effective representation.

The occurrence for which the petitioner was arrested took place on 271089. It was after investigation of Chand Beg that the petitioner was identified and his earlier statement was recorded on 301089. He was allowed bail by the Court at Amritsar and it was on 22390 that the detention order was passed by the Department.

In the return filed by the respondentauthorities, it is stated that the petitioner had been released on bail on 61189 and it was felt necessary to detain him with a view to prevent him from indulging in prejudicial activities. The antecedents of the petitioner were verified and supporting material was collected. After completing the entire process, the Customs Authorities referred the matter to the Govt. on 2212289, It was received by the Under Secretary on 2612 89. The proposal was examined by the Legal Agency of CID from 271289 to 291289 and some additional evidence was collected from the respondentauthorities on 8190. After a reminder was issued to them, the reply from the authorities was received on 18190. This proposal remained under examination with the Legal Agency of the CID from 9190 to 24190. It was, however, still incomplete and the bail order was called for. The grounds of detention were prepared and typed. Since it was quite a voluminous job and consumed sufficiently long time, the reply from the Customs Authorities was received on 22290 and the proposal was dealt with in the Legal Agency of the CID from 5390 to 9390. The case was then referred to the Department of Home Affairs and Justice of the State. There the case remained under examination from 9390 to 13 390 and was received back on 153.90. The proposal was reexamined in the office of the Under Secretary and ultimately put up before the competent authority, who, after examining the same, ordered detention of the petitioner on 18390. The formal order of detention was issued on 22390. Thus, the time taken in the passing of the order was reasonable and was adequately explained. The respondentauthorities also gave the details of the holidays which fell during the period from 301289 to 18390.

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 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 Ghosel 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 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 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 the genuineness of the "subjective satisfaction" alleged by the detaining authority.

In T.A. Abdul Rahman v. State of Kerala, 1989(1) Recent CR 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 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.

It was after 61189, after the petitioner was allowed bail that the case for detention of the petitioner was considered and the Customs Authorities referred the matter to the Govt. on 221289, Thereafter the Govt. officers kept the file shuttling in the Legal Agency of the CID, the Customs Authorities and the State Law Department. It was only on 15390 that the advice was received from the State Law Department and thereafter the papers were put up before the competent authority to pass an order on 18390. The reason furnished in the return for the delay in passing the order is not convincing. Along with this fact, a special fact to be considered, is that though the detention order was passed on 22290, it was executed on 12291. When these two aspects of the case are considered together, a genuine doubt arises with respect to the subjective satisfaction of the detaining authority and on that basis, the impugned order is illegal.

It is an admitted case of the parties that the petitioner had been allowed bail for the offence under the Customs Act and a reference to Annexure P 1 shows that this fact was considered that he had been allowed bail. It is, however, admitted that copies of bail application and bail order were not furnished to the petitioner. It is on this basis that the learned counsel urges that the petitioner had failed to make an effective representation and the detention order is bad in law.

In M. Ahmadekutty v. Union of India, 1990(1) Recent Criminal Reports 423 : 1990(2) SCC 1, their Lordships made the following observations with respect to the nonsupply 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. It 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 and 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 that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of detenu illegal and entitling the detenu to be set at liberty in this case."

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

The argument of the learned counsel is, thus, well founded and I hold that having not been supplied with copies of the bail order and the application for bail, on the basis of which bail order was passed, he could not make an effective representation and on that ground, the detention order is liable to be set aside.

The learned counsel has also challenged the detention order on the basis that the representation against the detention was filed on 11391 and rejected by the Govt. on 10491 and the rejection order was only conveyed to him on 13491 and as such, there was an inordinate delay in the decision of the representation. I am, however, of the view that the time spent in the passing of the rejection order was less than a month and no advantage of the same can be allowed to the petitioner.

In the light of the foregoing discussion, I allow the writ petition and set aside the impugned detention order. The petitioner be released forthwith, if not wanted in any other case.