Pipal Singh vs State of Punjab and another

G.S. Chahal, J.

Pipal Singh by means of this writ petition under Article 226 of the Constitution of India, seeks quashing of the detention order No. 1/38/91(COFEPOSA) 1621 dated dated September 5, 1991 (Annexure P1), Grounds of Detention dated September 5, 1991 (Annexure P1/A) and confirmation order No. 1/38/91/893HIII(COFEPOSA)/82 dated January 28, 1991 (Annexure (P2).

The facts on the basis of which the detention of the petitioner had been ordered may be gathered from grounds of detention Annexure P1/A. On December 13, 1990, the petitioner was intercepted by a BSF naka party while he was returning from his fields, and on search of his tractor 24 packets of 10 gold biscuits each of foreign origin were recovered from a cavity in the bottom of the tractor. The gold was got tested and valued from two goldsmiths and the same was found to be valued at Rs. 83,04,000/. In his statement made before the Custom authorities, the petitioner confessed the recovery and also admitted that he was working for Gurmukh Singh @ Gokhi r/o village Dhanoa, a gold smugglar, who had contacts with Pak smuggler Pale Khan resident of Gulberg, Lahore and that he had been acting as a carrier for the last three months. He also confessed that a labourer Bagicha Singh had been helping him and that he had been receiving Rs. 5,000/ per trip. Statement of Bagicha Singh was also recorded who confirmed the fact of helping Pipal Singh.

The petitioner challenges the detention order on the basis that there was a delay in the passing of the order and the same has been used as a punitive measure.

In the return filed, delay was explained as follows :

"After collecting and thoroughly examining the entire material on record, the proposal was sponsored to the State Government on 13.6.91 for the detention of the petitioner which was received in the office of answering respondent on the same day. The proposal was examined in the legal agency CID on 18.6.91 and same was returned to the sponsoring authority for the supply of additional information vide letter dated 21.6.91. The proposal was received in the office of answering respondent on 13.8.91 after the compliance. The proposal was again examined by the legal agency, CID from 21.8.91 to 22.8.91 and the same was sent for examining to the State Law Department. The proposal remained under examination of State Law Department. The proposal remained under examination of State Law Department from 27.8.91 to 30.8.91. Then proposal was examined in office of answering respondent and after considerating the material on record with due application of mind, the order of detention was passed by the competent authority on 4.9.91 and formal order was issued on 5.9.91 which was served upon the respondent on 27.9.91. It may also be clarified that 15.6.91, 16, 22, 23, 29 and 30.6.91, 6, 7, 13, 14, 20, 21, 27 and 28.7.91, 3, 4, 10, 11, 15, 17, 18, 24, 25 and 31.8.91, 1 and 2.9.91 were the holidays."

It has been averred by the petitioner and is not controverted by the respondent and rather admitted by the respondent that the petitioner had been released on bail on May 4, 1991. It was only subsequent to the passing of the order of bail that the case for detention was sponsored. Six months gap in the sponsoring of the case has not been explained.

In Lakshman Khatik v. The State of West Bengal, AIR 1974 SC 1264 the order of detention was held to be invalid were 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 incoming 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 offence 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 offer of detention is invalid.

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

In T.A. Abdual Rahman v. State of Kerala, 1989(2) Recent Cr 459 their Lordships of the Supreme Court held that when there is time lag of 11 months between the prejudicial activities and he order of detention the test as to whether the detention should be quashed on the ground of delay is not 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 caused 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.

The authorities appear to have instead of applying to the Court for cancellation of the bail resorted to the provisions of detention which in the circumstances of the present case will amount to use of the Detention order as punitive measure rather than preventive measure. I hereby accept the petition and quash the order of detention. The petitioner shall be released forthwith.