Puran Singh vs Sate 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 March 20, 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 nonapplication of mind. The operative part of the order reads as follows :

"Whereas the Governor of Punjab is satisfied that you Puran Singh son of Shri Inder Singh, r/o Khem Karan Distt. Amritsar, have been indulging in smuggling of goods and therefore, it is necessary to make an order directing that you Puran 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 Governor of Punjab is pleased to direct that you Puran 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".

The 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 the smuggling activity has many facets as innumerated. 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 purposes 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, or

(iv) Harbouring 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 March 18, 1987, the detaining authority i.e. Additional Chief Secretary recorded his satisfaction in the following manner :

"On perusal and consideration of the material on the file I agree that it is necessary and fully justified to detain the aforesaid Puran Singh under COFEPOSA Act, 1974 Issue orders 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 JUDGMENT 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 P. 1 is saying of the officer who drafted and prepared Annexure P. 1. 1. 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 on this score and held;

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

In Parduman Singh v. State of Punjab, 1988(2) Recent C.R. 423, decided on August 11, 1988, 1 had quashed the detention in similar circumstances. Following the dictum in Massa Singh''s case (supra), the detention of the petitioner is quashed on the ground that the order suffers from nonapplication of mind. It is ordered that he released forthwith, unless he is required in any other case.