Sarabjit Singh @ Shaba vs State of Punjab and another

G.S. Chahal, J.

Sarabjit Singh alias Shaba, the petitioner herein, seeks the quashing of the detention order No. 1/48/91(COFEPOSA/1758) dated 23.9.1991, Annexure P.1 and grounds of detention dated 23.9.1991, Annexure P.1/A by exercising the powers of this Court under Article 226 of the Constitution of India. The basis on which the detention was passed may be taken from the grounds of detention Annexure P.1/A and briefly narrated as under : 2. On 14.4.1991, on the basis of information, the petitioner was apprehend near Mazar of Babapir while he was returning from his fields. In the presence of Sarpanch Sher Singh and Member Panchayat Charan Singh of village Dal. His personal search was carried out, leading to the recovery of two bandoliers of Khakhi Jean cloth tied around his waist. On opening of the bondoliers 80 gold biscuits from one and 70 gold biscuits from the other in all 150 biscuits of foreign markings, wrapped in plastic type paper were recovered. Along with the cycle, this gold was taken into possession. On enquiry, the petitioner supplied the information that he was to hand over that gold to a man standing with LP Truck, belonging to village Mari Megha. He also disclosed that one Munshi who had already contacted him, was to come with the truck and after taking the gold from him, he was to deliver the same to Lakhwinder Singh alias Lakha Bhusa son of Ajit Singh of village Bhuse. The BSF party then proceeded in search for the truck and was ultimately able to apprehend the truck No. PBK 233 with driver Ranjit Singh alias Billa. The gold recovered was got tested and found to be worth Rs. 60,34,050/. The petitioner in his statement confessed the recovery of gold from his possession and also the fact that he was to hand over the same to Munshi who was to come in a truck for onward handing over the same to Lakhwinder Singh alias Lakha Bhusa. With respect to his engaging in this activity, he disclosed that about a month earlier, Munshi had met him at the Truck Union Office, Bhikhiwind and after gathering information about the location of his lands, told him that the lands being near the border, he could help Munshi in the activity of smuggling. In the first instance, the petitioner refused, but he was offered Rs. 5,000/ per trip to which he agreed. Munshi then told that he would give him a scheme for bringing the contraband goods About a week earlier, munshi came to his village to show his intention to see his fields. Munshi observed the distance from the border line with Sheeham tree and also asked the petitioner to dig a pit in roots of one Sarkanda plant. He also told the petitioner that the people belonging to the group of Hazura Singh resident of Ghawind (Pak) would conceal the contraband in that pit and that the should bring that gold after clearing the same from the pit during day time without being noticed by the BSF. On the next day, the petitioner not with a sickle for cutting Sarkanda and he then dug a pit under the reeds of Sarkanda plant at a predecided place. On 11.4.1991, Munshi met the petitioner and told him that on the night intervening 1213/4/91 the contraband shall be placed in a pit and he could recover it and bring it to the Mandir Dal and he would be paid Rs. 5,000/. On visiting however, the pit was found to be empty. On the following day, however, on search of the pit, 2 bondoliers were recovered which he retrieved and brought out. He carried the same bondoliers by tying them around his waist. It was the gold which had been recovered by the BSF. The petitioner was arrested on 16.4.1991 and sent to judicial custody on 22.4.1991 and on 17.7.1991 he was admitted to bail. 3. The learned counsel for the petitioner has urged that the `prejudicial activity'' was committed on 14.4.1991 and thereafter, no case was initiated for detention till 5.8.1991 and no explanation has been provided for the delay. There was also no information of any `prejudicial activity'' on the part of the petitioner after the grant of bail and that the representation was also rejected with delay and for these reasons, the impugned detention order should quashed. 4. In the return filed by the respondent authorities, it has been admitted that after his release on bail on 17.7.1991, no `prejudicial activity'' was committed by him. It has, however, been denied that there was delay in the process of the detention order. The following explanation was furnished with respect to the delay of the detention order : "From the petitioner, 150 gold biscuits of foreign origin were recovered on 14.4.1991. It took sufficiently long time in the investigation of the case at various levels, as the antecedents of the petitioner and his coassociate 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 sponserd the proposal on 5.8.1991 to the State Government for the detention of the petitioner which was received in the office of the Answering Respondent on 6.8.1991 and the proposal was examined by the Legal Agency from 7.8.1991 to 9.8.1991. Some additional information was called from the sponsoring authority vide State Government letter dated 13.8.1991. In the meanwhile, case was further examined and the original grounds of detention in Punjab 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. The case was again examined from 6.9.1991 to 10.9.1991 by the Legal Agency in the light of information received from the sponsoring authority vide his letter dated 19.8.1991 in the office of the Answering Respondent on 21.8.1991 and ultimately the proposal for passing the detention order of the petitioner was sent to the State Law Department on 11.9.1991, where it remained under examination till 13.9.1991. In the light of the observations of State Law Department, the proposal remained under examination, in the office of Answering Respondent and ultimately after consideration of the material on record with due application of mind the order of detention was passed by the competent authority on 20.9.1991 and formal order was issued on 22.9.1991. (10/8, 11/8, 15/8, 17/8, 18/8, 24/8, 25/8 and 31/8/91 1/9, 2/9, 7/9, 8/9, 14/9, 21/9 and 22/9/91 were holy days)".It is, thus, clear that it was almost more than 31/2 months after the `prejudicial activity'' that the process of detention was initiated and it took more than 11/2 months to pass the detention order. 5. 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 passing the order. The District Magistrate appears almost to have passed an order of conviction and sentence for offences 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 not 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 order of detention is invalid."6. In Amrik Singh @ Mika v. The State of Punjab and another, 1987(1) Recent Criminal Reports 443 , the detention order was set aside, where the same had been passed 8 months after the last `prejudicial activity'' of the detenu and the time lag had not been explained. I.S. Tiwana, J, while setting aside that order, made the following observations :

".........Even the detaining authority while passing the impugned order on August 31, 1985 though noticed the grounds of detention in detail yet failed to take any note of the delay that had occurred by then in passing the impugned order. It appears that the whole process has been gone through mechanically without seeing at any stage as whether the time lag that had occurred subsequent to the last mentioned activity of the petitioner in September, 1984, could in any way indicate that either he had abandoned these activities or was no more indulging in such activities. In the absence of such a consideration of the impugned order, to my mind, appears to be punitive than preventive. It has repeatedly been laid down by this Court as well as the final Court that the purpose of passing detention orders is not to punish the detenu for his activities in the distant past but is rather to prevent him from carrying on activities which are otherwise found to be prejudicial under the Act."

Admittedly, the petitioner had been allowed bail by the Court with respect to the prejudicial activity. The State does not appear to have made any effort to get that order vacated, but soon thereafter proceedings were initiated for passing of the detention order. In this situation, the detention order is being used as a punitive measure.

With respect to the ground of delay in the decision of the representation made by the petitioner against his detention order, the State has furnished the following explanation:

"The petitioner move his representation to respondent No. 1 on 2.10.1991 which was forwarded by the Suptdt. Central Jail, Amritsar on 30.10.1991. The same was received in the office of the Answering Respondent on 7.11.1991. Parawise comments are called from the sponsoring authority which were received on 20.11.1991 and the representation was examined in the Legal Agency in the light of the comments on 26.11.1991 and was sent to State Law Department on 27.11.1991. The same was examined in the State Law Department on 29.11.1991. The representation was rejected on 6.12.1991, on merits by the competent authority. The petitioner was intimated through the Supdt. of Jail Amritsar. Thus, the representation of the petitioner was decided promptly and without any delay."

I am of the view that the detailed account given is suffered to explain the process followed by the authorities for deciding the matter. It was not a mechanical rejection of the representation, but the order was passed after due consideration of the facts given therein.

In view of my findings with respect to the delay in the initiation of the proceedings and the item spent for its issue, I accept the criminal writ petition and quash the impugned detention order. The petitioner shall be released forthwith.