Parduman Singh vs State of Punjab

Harbans Singh Rai, J.—The petitioner assails his detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (hereinafter called the `Act'') in pursuance of the order dated May 28, 1987, Annexure P. 1 The petitioner has challenged the order of detention on a wide variety of grounds.

After hearing the learned counsel for the parties at some length, I am satisfied that the petition deserves to be allowed on the ground of nonapplicable of mind. The operative part of the order reads as follows :

"Whereas the President of India is satisfied that you Parduman Singh son of Shri Manohar Singh, r/o House No. 1823/A, Gali Gurvian, Katra Dal Singh, Amritsar, have been indulging in dealing and keeping smuggled goods and, therefore, it is necessary to make an order directing that you Parduman Singh be detained with a view to preventing you from indulging in the abovementioned prejudicial activities in future.

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 President of India is pleased to direct that you Parduman Singh be detained.

You have a right to make representation in writing against the order, under which you are being detained. If you wish to make such representation, you should address it to the State Government through the Superintendent of Jail as soon as possible."

This order is authenticated by Under Secretary Home, as envisaged by Article 166 of the Constitution of India. As is apparent from this order, the subjective satisfaction of the detaining authority was to the effect that with a view to preventing the petitioner from indulging in and keeping smuggled goods, it was necessary to detain him. Section 3(1) of the Act indicates that he smuggling activity has many facets as ennumerated in clauses (i) to (v) of this subsection. Section 3 reads as under : "3. (1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to the Government, specially empowered for the purpose of this section by that Government, or any Officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purpose of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from :

(i) smuggling goods, or,

(ii) abetting the smuggling of goods, or

(iii) engaging in transporting or concealing, or keeping smuggled goods.

(iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or

(v) harboring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained."

The original record pertaining to the case has been produced before me and it is apparent therefrom that on May 26, 1987, the detaining authority i.e. Additional Chief Secretary recorded his satisfaction in the following manner

"From the facts brought on the record, I am satisfied that Parduman Singh s/o Shri Manohar Singh has been indulging in nefarious activities of smuggling goods and it is necessary to detain him under the COFEPOSA Act, 1974, to prevent him from continuing/indulging in similar activities in future. Issue orders of his detention accordingly."

It is in pursuance of this order that the draft Annexure P.1 was prepared and authenticated by the Under Secretary, Home. In the order passed by the Additional Chief Secretary, there was no indication anywhere that the petitioner had to be detained under subsection (1) of section 3 of the Act much less under any of the clauses (i) to (v) of this subsection. It is not available from the record anywhere that the learned Additional Chief Secretary was aware as to which of the proposed grounds of detention fell, under which clause of this subsection. The reference to subsection (1) of. section 3 of the Act as made in order Annexure PA is saying of the officer who drafted and prepared Annexure P.1. I.S. Tiwana, J. in Massa Singh v. State of Punjab, 1988(1) Recent Criminal Reports, 498 , decided on January 21, 1988, almost in similar circumstances quashed the detention order on this score and held

"JUDGMENT did not state under which clause of section 3(1) the activity of detenu fellThis shows nonapplication of mindJUDGMENT of detention quashedJUDGMENT of detention cannot be read along with the explanation subsequently given by the Detaining Authority."

The learned counsel for the petitioner has brought to my notice that the grounds of detention in this case were supplied by the Assistant Collector Customs and the detention order is a verbatim copy of the report of the Customs Department and this shows nonapplication of mind by the detaining authority. I have considered the argument and find force in the same The Assistant Collector Customs vide his report dated January 27, 1987, had sent the grounds of detention and the report reads :

That as a result of surveillance by the Customs Preventive Staff, Amritsar, that your family members had returned to Amritsar on the morning of October 31, 1986, by morning train after, visiting Singapore. The Customs Preventive Staff, Amritsar, raided your house on the basis of search warrants issued by the Assistant Collector, Customs, (Preventive) Amritsar on 31.10.1986, Before start of the search of your house two independent witnesses were called and the search warrants were executed upon you. As a result of search of your house 126 wrist watches, 29 calculators, 4 cameras, one V.C.R. one television and other electronic and misc. goods of foreign origin and Indian currency worth Rs. 26,000 all totally valued at Rs. 1,50,655/ were recovered, as detailed in the recovery memo/panchanama drawn on the spot. The passports of your wife Mrs. Harjinder Kaur and your son Shri Hardeep Singh were also resumed by the Customs Preventive Staff, Amritsar.

On demand you failed to produce any documentary or otherwise, evidence in support of lawful importation/acquisition/possession of the recovered goods from you. As such, the goods so recovered were seized under section 110 of the Customs Act, 1962 by the Customs Preventive Staff, Amritsar, on the reasonable belief that the same have been smuggled into India in contravention of the provisions of Import Control JUDGMENT No. 17/55, dated 7.12.1955 as amended and issued under section 3(1) of the Imports and Export (Control) Act, 1947 read with section 11 of the Customs Act, 1962 and are liable to confiscation under section 111 of the Customs Act, 1962.

That you in your statement dated October 31, 1986, written in Punjabi in your own handwriting tendered before the Customs Officers stated that six months back you had been dealing in motor parts business, At present, you are sending your wife Smt. Harjinder Kaur and your son Hardeep Singh to Singapore in order to bring foreign goods. You used to arrange currency through hotels at Delhi and Bombay, where your wife and son used to stay before leaving for Singapore. You sold these goods at Amritsar to Shri Swaran Singh of M/s. Jaspal General Store on profit. Apart from this you have dealing with one Shri Rajinder Kapoor son of Shri Mohan Lal Kapoor, House No, 19, Gali Sunarian, Katta Dal Singh, Amritsar, who arranges passports, who arranged tours to Singapore for your wife and son. You have further stated that your wife and son had visited Singapore a number of times. This time your wife accompanied Shri Rajinder Kapoor to Singapore and came back on the morning on 31.10.1986. You have further stated that Shri Rajinder Kapoor kept his own passport No. A194765 along with one briefcase, which contained some, foreign watches and foreign calculators in its false bottom at your residence. Shri Kapoor as told by you had arranged two passports for your wife, the proof of which is available in Detention Receipts dated 16.9.1986 and 12.10.1986 according to which passport No. Y143620 dated 3.6.1986 and passport No. A740185 which is mentioned in Detention Receipt dated 12.10.1986. You had further disclosed that you were also involved in a Seizure case of charas and you were sentenced to two years imprisonment by the Additional District Sessions Judge, Amritsar, but later on acquitted by the Hon''ble High Court.

That you had admitted the recovery of the goods and had promised to produce the Customs duty paid receipts in respect of V.C.R. and television and other misc. goods of foreign origin but you had failed to produce them. You had also admitted that the recovered Indian currency worth Rs. 26,000/ was the sale proceed of foreign goods sold to Shri Swaran Singh of M/s. Jaspal General Store, Chawal Mandi, Amritsar.

On account of the aforesaid activities, it is established that you have been indulging in the smuggling of goods and keeping smuggled goods and, therefore, it is necessary to detain you under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view to preventing you from indulging in these prejudicial activities in future."

The grounds of detention on which the detention has been ordered, as given in Annexure P.1A, read as under :

(a) That as a result of surveillance by the Customs Preventive Staff, Amritsar, that your family members had returned to Amritsar on the morning of October 31, 1986, by morning train after visiting Singapore. The Customs Preventive Staff, Amritsar, raided your house on the basis of search warrants issued by the Assistant Collector, Customs (Preventive), Amritsar, on 31101986. Before the search of your house two independent witnesses were called and the search warrants were executed upon you. As a result of search of your house 126 wrist watches, 29 calculators, 4 cameras, one V.C.R. one television and other electronics and misc. goods of foreign origin and Indian currency worth Rs. 26,000/ all totally valued at Rs. 1,50,655/ were recovered, as detailed in the recovery memo. Panchnama was drawn on the spot. The passports of you wife Mrs. Harjinder Kaur and your son Shri Hardeep Singh were also recovered by the Customs, Preventive Staff, Amritsar.

(b) On demand you failed to produce any documentary or otherwise, evidence in support of lawful importantation acquisition/possession of the recovered goods from your house. As such, the goods so recovered were seized under section 110 of the Customs Act, 1962, by the Customs Preventive Staff. Amritsar, on the reasonable belief that same have been smuggled into India in contravention of the provisions of Import Control JUDGMENT No. 17/55 dated 7121955 as amended and issued under section 3 (1) of the Imports and Exports (Control) Act, 19,47, read with section 11 of the Customs Act, 1962, and are liable to confiscation under section 111 of the Customs Act, 1962.

(c) That you in your statement dated. 31101986 written in Punjabi in our own handwriting tendered before, the Customs Officers stated that six months back you had been dealing in motor parts business At present, you are sending your wife Smt. Harjinder Kaur and your son Hardeep Singh to Singapore in order to bring foreign goods. You used to arrange currency through hotels at Delhi and Bombay, where your wife and son used to stay before leaving for Singapore. You sold those goods at Amritsar to Shri Swaran Singh of Mis. Jaspal General Store on profit. Apart from this, you have dealing with one Shri Rajinder Rapoor son of Shri Mohan Lal Kapoor, House No. 19, Gali Sunarian, Katra Dal Singh, Amritsar, who arranges passports, who arranged tours to Singapore for your wife and son. You have further stated that your wife and son had visited Singapore a number of times. This time your wife accompanied Shri Rajinder Kapoor to Singapore and come back on the morning on 31101986. You have further stated that Shri Rajinder Rapoor kept his own passport No. A194765 along with one briefcase, which contained some foreign watches and foreign calculators in its false bottoms at your residence. Shri Kapoor as told by you had arranged two. passports for your wife, the proof of which is available in Detention Receipts dated 1691986 according to which passport No. Y143620 dated 361986 and passport No, A 740185 which is mentioned in Detention Receipt dated 12101986. You had further disclosed that you were also involved in a seizure case of charas and you were sentenced to two years, imprisonment by the Additional District Sessions Judge, Amritsar but later on acquitted by the

Hon''ble High Court,

(d)That you had admitted the recovery of the goods and had promised to produce the Customs duty paid receipts in respect of V.C.R. and television and other misc. goods of foreign origin but you had failed to produce them. You had also admitted that the recovered Indian currency worth Rs. 26,000/ was the sale proceed of foreign goods sold to Shri Swaran Singh of M/s. Jaspal General Store, Chawal Mandi, Amritsar.

(e) On account of the abovesaid activities, the President of India is satisfied that you have been indulging in smuggling and dealing and keeping smuggled goods and, therefore, has passed an order for your detention with a view to preventing you from indulging in these prejudicial activities in future.

(f) You are further informed that you have a right to make representation in writing against the order under which you are being detained. If you wish to make such representation you should address it to the State Government through the Superintendent of Jail as soon as possible, Your case will be submitted to the Advisory Board within the stipulated period.

(g) You have also the right to personally appear before the Advisory Board for representing your case and if you wish to do so, you should inform the State Government through the Superintendent of your Jail.

(h) You are being supplied the grounds of your detention in Punjabi (Gurmukhi script) and an English translation thereof along with the supporting material forming the base of the grounds, of detention."

A comparison of both shows that the grounds of detention on which the detention has been ordered is a verbatim copy of the grounds supplied by the Customs authorities and there is nonapplication of mind by the detaining authority. In this situation, the Supreme Court in Jai Singh and others v. State of Jammu and Kashmir, 1985(2) Recent Criminal Reports 39, observed

"First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur to the District Magistrate requesting that detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh and the address given as Village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of.... Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention all that the District Magistrate has done is to change the first three words "the subject is" into "You Jai Singh s/o Ram Singh, resident of village Bharakh Tehsil Reasi". Thereafter, word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into "you" in the grounds of detention. We are afraid it is difficult to find greater proof, of nonapplication of mind. The liberty of a subject is a serious matter and it is not to be tariffed with in this casual, indifferent and routine manner." These observations literally apply to the facts of this case also.

Another ground taken by the learned counsel for the petitioner is that the grounds of detention date back to October 12, 1986 to October 31, 1986 and the detention order was passed on May 28, 1987, and it was served on December 19, 1987, and there is no proximity between the events mentioned in the grounds of detention and the order of detention and the detention itself. The order of detention was issued seven months after the first alleged incident and this delay of seven months is not explained. The learned counsel for the petitioner has relied upon Jagan Nath Biswas v. The State of West Bengal, AIR. 1975 S.C. 1516,wherein it was held :

"Maintenance of Internal Security Act (1971), Section 3Inordinate delay in passing order of detention after the occurrence of the incidents relied onDelay not explained. Bona fides of "subjective satisfaction" of detaining authority held not established."

In my view, the grounds of detention had become stale and on this ground also the detention is liable to be quashed.

In view of the above discussion, the detention of the detenu is quashed. It is ordered that he be released forthwith, unless he is required in any other case.