Sohan Singh vs State of Punjab

G.S. Chahal, J.

Sohan Singhpetitioner has come to this Court in this petition under Articles 226 and 227 of the Constitution of India for the issuance of a writ in the nature of Habeas Corpus directing the respondents to release him from Central Jail, Bathinda, as his detention order dated April 11, 1991 (Annexure P1) was illegal.

The facts on the basis of which his detention order was passed may briefly be stated :

On the night intervening April 30, 1990/May 1, 1990, a BSF nakabandi was held in the village Sona Sander. At about 4.30 hours, the naka party observed five intruders, coming towards it. On hearing the challenge, they dropped their headloads and started running. After a chase, they were able to catch four out of them, including the petitioner and they were arrested. On search being carried out in the area, 58 packets in four bundles lying in the nearby fields were recovered. On opening them, they were found to contain heroin. The same weighed 53 kgs. A truck bearing No. PBN 2166 which was to carry the contraband goods was also seized. Saraj Singh and Harjinder Singh were also arrested. The statement of Sohan Singh was recorded on May 2, 1990 by the Superintendent Customs, Prevention, Jalalabad under Section 108 of the Customs Act, wherein he stated that on April 30, 1990, he was standing on Pindi bus stop when he was contacted by Bagicha and his other companions namely Joga Singh, Nirmal Singh, Harjinder Singh, Puran Singh @ Punna and Saraj Singh. Bagicha Singh told him that they had to carry some material from the nearby place and that he will be paid Rs. 200/ for that work to which he agreed. The petitioner and Puran Singh @ Punna and others stayed in the fields near Pulli Dharmo Wali in the said truck. At about 3/4.00 a.m., three persons came and handed over the material.

The petitioner pleads that after this arrest, he had remained in the judicial custody and his bail was declined by the Court on July 13, 1990. The fact of rejection of his bail had not been taken into consideration and the authorities had not mentioned any compelling reason for passing the orders of detention. There is no explanation for the delay in passing of the detention order. The representation made against the detention order has not so far been decided and this makes the detention illegal.

The prejudicial activity relates to May 1, 1990 and the detention order is dated April 11, 1991.

In the return filed, it has been stated that 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, sponsored the proposal on 12.12.1990 to the State Government for the detention of the petitioner which was received in the office of Answering Respondent on 21.12.1990 and the proposal was examined by the legal agency from 21.12.1990 to 28.12.1990. Some additional information was supplied by the sponsoring authority vide letter dated 26.12.1990 and that information was incorporated in the draft grounds of detention and was examined again by the legal agency from 2.1.1991 to 3.1.1991 in the light of this information. 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. In the meanwhile, the case was again put up to the legal agency and remained under examination from 26.2.1991 to 27.2.1991 and some additional information was called. The additional information was received in the office of the Answering Respondent No. 18.3.1991. The proposal was again sent for examination in the Legal Agency which remained under examination from 19.3.1991 to 10.3.1991 in the light of addition information called. Ultimately, the proposal for passing the detention order of the petitioner was sent to the State Law Deptt. on 25.3.1991 where it remained under examination from 25.3.1991 to 26.3.1991. After consideration of the material on record, with due application of mind, the order of detention was passed by the competent authority on 5.4.1991 and formal order was issued on 11.4.1991. That 22/12, 23/12, 24/12, 25/12, 29/12 and 30.12.1990, 5/1, 6/1, 12/1, 13/1, 19/1, 20/1, 6/1, 27/1, 30/1/91, 2/2, 3/2, 9/2, 10/2, 12/2, 16/2, 17/2, 23/2 and 24.2.1991, 1/3, 2/3, 3/3, 9/3, 10/3, 19/3, 17/3, 23/3, 24/3, 28/3, 29/3, 30/3 and 31.3.1991 and 6/4 and 7/4/91 were holidays.

On the basis of the fact stated in the return, learned Counsel for the petitioner urges that the process of passing the detention order was initiated by the Central Excise Collectorate after a lapse of about one year from the date of prejudicial activity complained of is punitive and is not preventive. He, however, states that the authorities again took more than four months to complete the process and same was unjustified and would create doubt as to the genuineness of the subjective satisfaction of the competent authority.

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 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 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 to prevent disruption of supplies of foodgrains one should think that present 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."

In Rabindra 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 S.K. Serajul v. State of West Bengal, AIR 1975 SC 1517 there was undue delay after the alleged incidents before order of detention was passed and again after the order of detention and before actual arrest of detenu. Their Lordships held that court could doubt the genuineness of the alleged `subjective satisfaction'' of the detaining authority as to the necessity of detaining the detenu with a view to preventing him from acting in a manner prejudicial to maintenance to the community. In a Habeas Corpus petition such delay must be satisfactorily explained in order to prove the genuineness of the `subjective satisfaction'' alleged by the detaining authority.

In T.A. Abdul Rahman v. State of Kerala, 1989(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 observed that the delay of 3 months in the arrest causes doubt on genuineness of the subjective 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.

The reasons furnished in the return for delay in passing the order of detention are not convincing. Considered in the light of the judgments, referred to above, a genuine doubt arises with respect to the subjective satisfaction of the detaining authority and on that basis the impugned order of detention has to be held as illegal.

The petitioner has taken the plea that representation made by him had not been decided. However, no details of the dates, as to when the representation was made are given in the petition. The respondentauthorities have denied having received any representation. I accept the plea of the respondentauthorities. The order, thus cannot be held to be illegal on this score that the representation has not been decided.

The learned Counsel has then urged that there has been a solitary instance of seeing the petitioner indulging in smuggling activity and the same was not sufficient to justify the detention order. I, however, an unable to endorse this argument. The item involved was heroin and it was a substantial quantity, weighing 53 kg. The petitioner had gone to IndoPak border to collect heroin after due delieration and preplanning. This could show future propensity of the petitioner. Looked at in this background, the detention order cannot be held to be bad on the basis that there was only one solitary act of smuggling.

For the reasons that there was an inordinate delay in passing of the detention order. I accept the Criminal Writ Petition and quash the detention order. The petitioner be set at liberty forthwith if not wanted in any other case.