Raghbir Singh vs State of Punjab

G.S. Chahal, J.

Raghubir Singh petitioner who is presently confined to Central Jail, Amritsar, by means of this Cr. W.P. under Articles 226/227, Constitution of India, seeks a writ in the nature of Habeas Corpus for his release by quashing the detention order No. 1/3/923 HIII (COFEPOSA)/56 dated 8.1.1992,passed by respondent1, based on the ground of detention, Annexure P2, the same being illegal.

The facts on the basis of which, the petitioner was detained, may be gathered from the grounds of detention Annexure P2.

On 5.7.1991, at 7.30 a.m., on the basis of an information, the Customs Preventive Staff, Amritsar organised a Naka near Sarna Crossing, Tehsil Pathankat. Truck with registration No. DL IG3858, which was coming from the direction of Jammu, was signalled to stop, but the driver accelerated the same and fled away. It was given a hot chase on Government vehicle and was forced to stop near Jhakolari railway crossing. The driver and the cleaner ran away, abandoning the vehicle. However, the petitioner and clearner were arrested. The name of the clearner was confirmed to be Jasbir Singh. On being interrogated, the petitioner disclosed the existence of a secret cavity made in the truck which contained 4 bandoliers (Vansalies) made of cloth, each vansali containing 100 gold biscuits with foreign markings. The petitioner, Jasbir Singh unscrewed the cover of the secret cavity and showed 400 gold biscuits in the Vansalies which were restored at the same place. The truck, the petitioner and Jasbir Singh were brought to the Customs House, Amritsar where independent witnesses were joined and rummaging of the said truck was carried out. In that search, 4 bandoliers of cotton cloth were recovered from the secret cavity, which, on opening, revealed 100 gold biscuits. Registration Certificate of the truck in the name of Ajit Singh, issued by the Director of Transport, Delhi and two road Toll, Lower Mirnda receipts were recovered. The petitioner and Jasbir Singh could not produce any evidence in support of their legal acquisition/possession/transportation of the contraband gold biscuits. The gold was got weighed, tested and valued from two dealers and it was found to be of the puriety of 24 carats, weighing 46.656 grams and valued at Rs. 1,95,95,520/. Since the goods were found to be smuggled into India, the gold, along with the truck and other articles, were seized and taken into possession. On 5.7.1991, the petitioner made a voluntary statement before the Customs Authorities and confessed recovery of 400 gold biscuits, with foreign markings, in the manner stated above. Description of the manner in which he indulged in the transportation of the smuggled goods was also given by him. He further disclosed that the gold recovered had been placed in the secret cavity by Fakira, who had thereafter left for Pathankot on a motorcycle. Jasbir Singh made a voluntary statement on 2.7.1991 and also confessed the recovery of 400 gold biscuits, aforesaid. It is on account of his activities of engaging in transportation of smuggled goods that the impugned detention order was passed.

The petitioner has challenged the detention order on the basis that after his arrest, he has remained in custody and was never allowed bail. However, in the impugned detention order, Annexure P1 it has been stated that the petitioner was on bail and this fact would show that the detaining authority did not apply its mind to the facts of the case and the order had been passed on a cyclostyled preforma without going through the facts of the case. The documents relating to the order of rejection or grant of bail were not made available to the petitioner. The `prejudicial activity'' is dated 5.7.1991 and the detention order passed on 8.1.1992. There is no explanation of the delay in the passing of the detention order. The activity had become stale and the detention order is thus, punitive rather than preventive in nature. Since the bail application of the petitioner had been rejected, the respondent authorities were required to show the compelling reasons which necessitated the passing of the detention order to restrain him from engaging in `prejudicial activities''. The statement relied upon by the authorities had been retracted and that fact was vital for consideration, but the same has not been considered. Representation dated 10.1.1992. Annexure P3, was sent to the Government which has however, not been decided till today. Although the goods are stated to be shown to the Customs Authorities, the same were not taken into possession.

In the return it has been stated that there were sufficient grounds for passing the detention order and the same had been passed after due application of mind, on the basis of subjective satisfaction of the detaining authority. It was not necessary for the respondentauthorities to supply copy of each and every document to the petitioner, especially as no such demand was made. With respect to the delay in the passing of the order, the following plea was taken;

"3(c) That in reply to this para, it is submitted that the test of proximity is not to be applied mechanically by counting the time consumed in passing the order of detention from the prejudicial activities indulged in by the petitioner, if the time taken between the last prejudicial activity and the passing of order of detention remains alive and there is no delay in passing the order of detention. It took sufficiently long time in the investigation of the case at various levels, as the antecedents of the petitioner and his coassociates were to be verified and various links of the petitioner had to be proved and unearthed. After collecting and thoroughly examining the entire material on record, the sponsoring authority sponsored the proposal on 14.10.1991 to the State Government for the detention of the petitioner which was received in the office of Answering Respondent on 18.10.1991 and the proposal was examined by the legal agency from 21.10.1991 to 24.10.1991. Some additional information was called from the sponsoring authority vide State Government letter dated 28.10.1991 which was received in the office of answering respondent on 18.11.1991. In the meanwhile, case was further examined and the original grounds of detention in Punjabi were prepared and the same were translated into English. Number of copies of supporting material were typed which was quite a voluminous job and consumed sufficiently long time. Some more additional information was called vide letter dated 19.11.1991 which was received on 16.12.1991. The case was again examined in the legal agency on 18.12.1991 in the light of information received from the sponsoring authority. Ultimately, the proposal for passing the detention order of the petitioner was sent to the State Law Department on 31.12.1991 and ultimately after consideration of the material on record, the order of detention was passed by the competent authority on 3.1.1992 and formal order of detention was issued on 8.1.1992. During the processing of detention proposal 17/10, 19/10, 20/10, 23/10, 26/10, 27/10/91, 1/11, 2/11, 3/11, 5/11, 9/11, 10/11, 16/11, 17/11, 21/11, 23/11, 24/11, 30/11/91, 1/12, 7/11, 8/12, 11/12, 14/11, 15/12, 21/12, 22/12, 28/12, 29/12/91, 4/1 5/1, were holidays."

It was admitted that the petitioner was in custody, but it was further stated that the detention order could be passed even though the petitioner was in custody. It was confirmed that the gold has been recovered in the manner stated in the grounds of detention.

The prejudicial activity is dated 5.7.1991, but the proposal for detention was initiated only on 14.10.1991, i.e. more than 3 months after the `prejudicial activity''. It then took another 3 months to pass the necessary orders. It is interesting note that during this process, some additional information was called for vide letter dated 19.11.1991 which is stated to have been received by the sponsoring authority on 16.12.1991. It is difficult to swallow this delay in the moving of the papers from one office to the other. The return is silent as to the reasons for this delay. It is also to be borne in mind that from the time of his arrest, the petitioner was in custody and was never allowed bail.

In Lakshman Khatik v. The State of West Bengal, AIR 1974 SC 1264 the order of detention was held to be invalid where 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 in coming 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 in the grounds have taken place. In our opinion, the order of detention is invalid."

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

In T.A. Abdul Rahman v. State of Kerala, 1981(1) RCR 459 their Lordships of the Supreme Court held that when there is time lag of 11 months between the prejudicial activities and the order of detention, the test as to whether the detention should be quashed on the ground of delay is not a 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 obseved that the delay of 3 months in the arrest causes doubt on genuineness of the subjecttive 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.

In Dharamdas Shamlal Aggarwal v. The Police Commissioner and another, 1989(1) RCR 454 , their Lordships of the Supreme Court held that all the material facts should be placed before the detaining authority and the nonplacing of those facts, results in nonapplication of mind and 1 quote :

"From the above decision it emerges that the requisite subjective satisfaction, formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. It is clear to our mind that in the case in hand, at the time when the detaining authority passed the detention order this vital fact, namely, the acquittals of the detenu in case Nos. mentioned at serial Nos. 2 and 3 have not been brought to his notice and on the other hand they were withheld and the detaining authority was given to understand that the trial of those cases were pending. The explanation given by the learned Counsel for the respondents, as we have already pointed out, cannot be accepted for a moment. The result is that the nonplacing of the material fact namely the acquittal of detenu in the above said two cases resulting in nonapplication of mind of the detaining authority to the said fact has vitiated the requisite subjective satisfaction, rendering the impugned detention order invalid."

An interesting situation has also occurred in the case. The petitioner was admittedly in custody and yet in the detention order, it is recorded that he was on bail, and the detaining authority was conscious of this fact. It shall indicate that correct facts were not placed before that Authority.

In K.M. Abdulla Kunhi and BL Abdul Khader v. Union of India and others, 1999(1) RCR 423 , their Lordships of the Supreme Court held that it is imperative that if the detenu was already in jail, the grounds of detention are to show an awareness of that fact on the part of the detaining authority, otherwise there would be nonapplication of mind and the detention order would stand vitiated.

In the present case, not only the detention order was passed after a gap of 5 months, but also during the process there had been delay at one of the stages and the order of detention shows that there was nonapplication of mind, the order stands vitiated. I hereby accept the criminal writ petition and quash the impugned order. The petitioner may be released forthwith.