Pipal Singh vs State of Punjab

V.S. Aggarwal, J.

This is a petition filed by Pipal Singh (hereinafter described as ''the petitioner'') seeking quashing of the order of detention of the petitioner dated 27.6.1996. It has been passed under Section 6 of the Prevention of Illicit Traffic in Narcotics and Psychotropic Substances Act, 1988.

The relevant facts are that in pursuance of secret information, the Punjab Police and the Customs Staff, Ferozepur held a picket near Government Polytechnic College, Dulchike Road, Ferozepur City on 6.1.1996. At about 9.30 p.m. the picket was near the culvert near Government Polytechnic College. A truck was seen coming from Dulchike side towards Ferozepur. It was signalled to stop. Instead of stopping the truck, the driver accelerated the speed and tried to flee away. The members of the picket party fired in the air, as a result of which the driver of the truck stopped the same. Three persons including the driver were overpowered. A gunny bag was recovered from the driver''s cabin which was lying in front of the seat. One Satnam Singh deposed that gunny bag contained 40 packets of heroin. The same were recovered.

One Ajaib Singh in his voluntary statement admitted the recovery of 40 packets of brown powder. He stated that Gurmej Singh and Satnam Singh were along with him. Gurmej Singh in his voluntary statement besides admitting the recovery referred to above stated that along with others, he had gone to the brick kiln on Dhulchike road. Pargat Singh met another person who was the petitioner. It was the petitioner who carried the bags containing brown powder to their truck. The same were handed over to Satnam Singh who counted them and placed them in the driver''s cabin. The petitioner was arrested on 19.1.1996. He is alleged to have made a voluntary statement that along with Pargat Singh, he had delivered 40 packets of heroin (brown powder) to Satnam Singh. Keeping in view the facts, the petitioner was detained by passing an order under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

The petitioner seeks quashing of the order on the ground that no recovery was effected from him. He is not a previous convict and, thus, such an order could not be passed. His contention further is that he had submitted representations dated 26.7.1996 which till date have not been decided. The grounds of detention were not supplied to him.

In the reply filed by the Union of India, it had been pointed that only representation dated 13.8.1996 was received. It was decided on 19.9.1996 because the next representation reached the Union of India on 16.9.1996.

The State of Punjab in its reply besides reiterating the facts against the petitioner, however, admitted that representation was still pending. However, it was pointed that petitioner was supplied the grounds of detention.

Another reply by Amrita Atwal, Joint Secretary to Government of Punjab was filed. Herein the plea raised was that representation dated 26.7.1996 was not received but the Superintendent, Central Jail had sent representation which was forwarded to the Under Secretary, Government of India on 12.9.1996. The Government of India rejected the same. So far as the Government of Punjab is concerned, the plea was that the same was rejected on 10.9.1996. It was reiterated that grounds of detention had been given.

Keeping in view the inconsistent replies as to if the representation of the petitioner had been decided or not, a fresh opportunity to explain was given. In the affidavit filed of Assistant Superintendent of Police, Ferozepur, it had been mentioned by inadvertent mistake it had been stated that representation of the petitioner was pending. In fact it had been decided.

At the time of arguments, learned counsel for the petitioner reiterated the argument that representation of the petitioner was not decided and in any case not decided promptly.

It goes without saying that orders of detention are preventive rather than punitive. The purpose of the orders that are so passed is to prevent further commission of crime. The Courts because of Article 22 of the Constitution of India insist that representations must be decided expeditiously and delay, if any, must be explained.

The Supreme Court in the case of Shyam Ambalal Siroya v. Union of India and others, AIR 1980 SC 789 held that representations must be dealt with expeditiously. It should be also forwarded expeditiously. In paragraph 6, it was held :

"In any event, it is clear that a representation properly addressed by the detenu to the Central Government was not forwarded to the Central Government and as such no action had been taken up to date. It may be permissible for the Central Government to take reasonable time for disposing any revocation petition. But it would not be justified in ignoring the representation for revocation of the detention as a statutory duty is cast upon the Central Government. It is necessary that the Government should apply its mind and either revoke the order of detention or dismiss the petition, declining to order for revocation."

Subsequently, in the decision of Smt. Khatoon Begum v. Union of India and others, AIR 1981 SC 1077 where there was delay in consideration of the representation, the Court quashed the detention order because of Article 22(5) of the Constitution of India. The Court held :

"Article 22(5) enjoins a duty on the authority making the order of detention to afford the detenu "the earliest opportunity of making a representation against the order". The right and obligation to make and to consider the representation at the earliest opportunity is a constitutional imperative which cannot be curtailed or abridged. If the Parliament or the State legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation, or if the inter departmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate. It is essential that any law providing for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus. It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable."

This view prevailed and has found favour in the subsequent decisions. In the case of Mahesh Kumar Chauhan alias Banti v. Union of India and others, AIR 1990 SC 1455 on similar grounds the order of detention was quashed.

Reverting back to the facts of the present case, it is apparent that the State of Punjab firstly was not serious in bringing it to the notice of this Court, the correct facts. In the first instance, it was stated that representation of the petitioner was pending. Subsequently, in the other reply the answer was that it had been decided and rejected on 10.9.1996. The State is not sure of its stand. Not only that the representation is dated 26.7.1996. Copy of the same has been appended as Annnexure P2. There is no attempt made by the State of Punjab to indicate as to when the same was dealt and by which officer. It is not explained as to why and how the delay occurred. Vaguely stating that representation had been rejected when nearly two months had expired, indeed is most improper and casual way of dealing with the representation. Article 22(5) of the Constitution of India casts a special duty on the authorities to deal with the representation promptly and immediately. Having not done so prejudice is caused to the petitioner and he is rightly aggrieved.

For these reasons, on this short ground the petition is allowed. The detention order is quashed. The petitioner be released immediately, if not required in any other case.