Prem Singh vs State of Punjab and anr.

Ujagar Singh, J.

The District Magistrate. Amritsar, passed the detention order Annexure P3 dated 211988 under section 3(2) read with section 3(3) and section 14A of the National Security Act, 1980, as amended uptodate, against the petitioner with a view to preventing him from acting in manner prejudicial to the security of state and maintenance of public order and interference with efforts of Government in coping with the terrorist and disruptive activities. Under that order it was directed that the petitioner be arrested and detained in Central Jail, Amritsar where he was at that time lodged in judicial custody in cases registered against him. The petitioner was said to be taking steps to get himself released from custody and there was every likelihood of his being set at liberty and in that event, he was likely to indulge in prejudicial activities, as he was prima facie having propensity towards such activities, it was felt that there was a compelling necessity to pass the said detention order.

Thereafter another detention order Annexure P1 dated 1131989 was passed by the Under Secretary, on the ground that the petitioner has been engaging in concealing, keeping or dealing with smuggled goods and therefore, it became necessary to make an order for detaining the petitioner. This order was passed under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

The grounds of detention in support of Annexure P1 are given in Annexure P2. One of the grounds is that the officers or the Directorate of Revenue Intelligence, Amritsar searched the residential premises of the petitioner on 2161989 and as a result of the search, 50 gold biscuits of ten tolas each, bearing foreign markings and of the value of Rs. 15,94,505/ were seized by the officers in the reasonable belief that the same were liable to confiscation under the Customs Act, 1962. The petitioner could not produce any evidence for lawful possession and the scooter so used for transporting the smuggled biscuits was also seized.

Ground No. 2 is that residential premises of Pargat Singh were searched on 2261987, but nothing incriminating was recovered.

Ground No. 3 is that said Pargat Singh in his statements dated 2161987 and 2261987 admitted the recovery of the seized 50 gold biscuits and inter alia stated that the seized gold biscuits had been smuggled from Pakistan into India by one Muslim whose name and address were not known to him. He was a carrier of Paksmuggler Nazir. r/o Lahorian (Pakistan) The same were delivered to his uncle Jagir Singh. Both of them had come with the biscuits. concealed in a tractor No. PBA6188. On reaching Amritsar, the said Jagir Singh had directed him to deliver the same at the residence of the petitioner who concealed the same in the cavity of scooter No. PCA7987 and brought the same to his residence.

Ground No. 4 was that Smt. Harjit Kaur wife of Sukhdev Singh had inter alia stated that on 2161887 the seized 50 gold biscuits were recovered, as stated above. She did not know from where Pargat Singh had brought those.

Ground No 5 is that premises of Jagir Singh were searched by the said officers on 2161987, but nothing incriminating was recovered.

Grounds No.6 and 7 are that summons u/s 108 of the Customs Act for appearance of Jagir Singh before the Assistant Director, Directorate of Revenue Intelligence, Amritsar on 871987 were sent on 271987 by Regd./AD at his address, but the same were received back undelivered with the postal remarks Nobody was available in the house in spite repeated visits, returned back. Summons were again sent on 1671987, but similarly received back on 3071987. Similarly summons were sent to the petitioner and the same were received back.

Ground No. 8 is that said Pargat Singh was arrested on 2261987 and was produced before the Duty Magistrate, who remanded him to judicial custody till 471987.

Annexure P4 is the application made by Pargat Singh for release on bail, as the period of 60 days had expired. Annexure P5 is the representation made by Pargat Singh through his counsel, in reply to the Collector of Customs that Pargat. Singh was admitted to bail on 2581987 after his custody for more than 60 days. In this representation, it was specifically mentioned that the said statement was a false record prepared on pain of physical injuries to him.

This petition challenges the detention orders Annexure P1 and the grounds of detention Annexure P2. The challenge is on various grounds, namely that the petitioner was detained by order Annexure P3 passed under the National Security Act and was in jail. While he was in custody Annexure P1 was passed, with the grounds of detention Annexure P2. While passing Annexure P1, the detaining authority was not aware of the fact that the petitioner was already detained under the National Security Act, vide Annexure P3. As such, there could be no possibility of his being released in the near future. It is also challenged on the ground that there was only one incident on the basis of which detention order was passed and the case regarding the said incident was pending before the Customs Authority who had relied upon the detention of the petitioner, said to have been recorded on 2161987, while the detaining order was passed only on 1131988. Still another ground for challenge is that the said Pargat Singh who had been arrested under the Customs Act, on 21 6 87 had applied for bail and was granted bail on 2581987. The detaining authority was also not aware of this fact. The fact is that a show cause notice was given by the Customs Act to said Pargat Singh, who in his reply dated 1511988, had denied the recovery and his confessional statement. The petitioner also made an averment that he moved an application on 1081987 and was granted bail by the Chief Judicial Magistrate Amritsar.

In a nutshell, the challenge is that the detaining authority was not aware of the petitioner''s custody under the National Security Act; the said Pargat Singh having been arrested on 2161987 and was granted bail on 2581987, the show cause notice by the Customs Authorities having been issued to the said Pargat Singh on 4121987 and in reply thereto said Pargat Singh had denied the recovery and his alleged confessional Statement and the fact that the petitioner was arrested under the Customs Act and he was released on bail on 10.8.1987.

Notice of this case was issued for 861988 and on that date the learned counsel for the respondents wanted some time to file a reply. The case was adjourned to 13.6.1988. On that date again, another adjournment was sought. The case was adjourned to 1371988. Reply again was not filed. The state was directed to file reply on or before 2571988 and failing the same, it was directed that the petition would be considered on its own merits, as given in the petition itself. When the case came up for hearing on 2571988, again, time was granted and the case was posted for 191988. On the last mentioned date also time was sought and the case was again postponed to today. No reply has been filed on behalf of the respondents.

I have heard the learned counsel for the parties and have also gone through the record of the case.

The main ground of attack is that the detaining authority passed the detention order Annexure P1 without going into the facts and therefore, the detaining authority cannot be said to have subjective satisfaction before passing the order.

There was only one incident of recovery of 50 gold biscuits which were alleged to have been smuggled and that happened on 21.6.1987. The petitioner was released on bail in the month of August, 1987 by the Chief Judicial Magistrate, Amritsar. The said Pargat Singh had also been released on bail on 2581987. In reply to the show cause notice, the said Pargat Singh has not only denied the recovery, but has also denied his having made any confessional statement. The facts indicate very clearly that there is only one incident of recovery of 50 gold biscuits and that recovery took place on 2161987. Thereafter the petitioner and the said Pargat Singh were released on bail in the month of August, 1987. After they were released on bail, a period of about 61/2 months, elapsed before Annexure P1 was passed. The detaining authority has not applied its mind at all to the facts said above. It is possible that had these facts been brought to the notice. of the detaining authority, the detention order might not have been passed. Apart from this, there was only one incident and by the time the above order was passed, it had been stale and I do not find any continuity or proximity between the said incident and the detention order.

In view of what has been discussed above, the detention. order and the grounds of detention cannot be said to have been passed after subjective satisfaction by the detaining authority. This criminal writ is, therefore, accepted and the said orders are hereby quashed. The petitioner be set at liberty forthwith, if not wanted in any other case.