Sucha Singh vs State of Punjab and ors

G.S. Chahal, J.

Sucha Singh, petitioner who is presently confined in Central Jail, Bhatinda under the detention order No. 1/55/91 COFEPOSA 1939 dated 29.10.91, passed under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 against him, has come to this court in this criminal writ petition for its quashing.

The facts on the basis of which the detention of the petitioner was ordered, may be gathered from the grounds of detention, Annexure P3 and briefly stated as u;under :

On 27.2.91, Border Security Force Party fixed a Naka on the BhikiwindAmritsar Road. At about 1400 hours the petitioner, alongwith Swinder Singh alias Badry alias Kairon, was seen coming on a tractor B275. They were given the signal to stop. They stopped the tractor at a distance of about 50 yards from the party. After jumping from the vehicle, they started running away. The BSF party chased them and also opened fire, but they managed to escape. A search of the tractor was carried out and from a specially made cavity below the steering and behind the meter panel board, located on the left side of fuel bank of the tractor, 31 packets wrapped in brown and white plastic type paper/material, were recoveerred and each packet was found to contain 10 gold biscuits of 10 tolas each, bearing foreign markings. The gold was got weighed and it valued at Rs. 1,26,51,000/. On 4.3.91 the tractor was confirmed to belong to one Gurbachan Singh who was interrogated on 5.3.91. Gurbachan Singh made his statement before the Superintendent, Customs Preventive Station. Bhukhiwind to the effect that on 26.2.91, his sons the petitioner and his friend Swinder Singh alias Badru alias Kairon had taken the tractor on the pretext of the installing new battery and that they would return home after seeing Hola Mohalla fair at Anandpur Sahib in 34 days. During investigation of 390 biscuits had been smuggled into India by Swinder Singh. Out of them Swinder Singh had been able to carry away 8 gold biscuits while escaping. The petitioner and his companion were arrested by the Customs Authorities on 21.3.91 and from the possession of Swinder Singh, 78 gold biscuits of foreign markings were recovered and which were valued at Rs. 81,82,405/. The petitiioner made his statement before the customs Authorities and he described the circumstances in which, he and Swinder Singh had taken the tractor and brought the gold. Information was also supplied with respect to the fixing of the cavity. He also gave information that he, along with Swinder Singh and Rajesh warpal Singh had been working for Balwinder Singh and remunerations were offered. The petitioner was produced before the Chief Judicial Magistrate and remanded to the custody of Customs Inspector; subsequently given judicial custody and ultimately released on bail, on 27.5.91. On account of the aforesaid "prejudicial activities", the detaining authorities felt satisfied that the petitioner was engaged in transporting the smuggled goods and his detention was necessary for preventing him from indulging in the `prejudicial activities''.

The petitioner challenges the detention order on the basis that there was delay in the initiation of the case for his detention and the detention order was, in fact, passed with delay with respect to a stale matter. It is also challenged on the basis that after the passing of the order, there was delay in its exectution and also on the basis that the representation of the petitioner was not decided with necessary promptness.

According to the return filed, the proposal for detention was sponsored on 19.7.91. After collecting and assessing the entire material on the record, the proposal was received by the authorities on 22.7.91. It remained under examination of the Legal Agency from 22.7.91 to 26.7.91. On 2.8.91 the case was reffered back to the sponsoring authorities for making necessary amendments. The proposal was then received in the office of the detaining authorities on 8.8.91. The case was then examined by the Legal Agency from 14.8.91 to 20.8.91. After information was called from the sponsoring authorities vide latter dated 2.8.91 which was received in the office of the detaining authorities on 9.10.91, the proposal for passing the impugned detention order of the petitioner was sent to the State Law Department on 18.10.91 and and the detention order was passed by the competent authority on 25.10.91. The details of the holidays which fell during the intervening period were also given.

There is force in the contention of the elearned counsel for the petitioner that the `prejudicial activity'' relates to 21.3.91 and the confessional statement of the petitioner relates to 24.3.91 and the proposal was initiated only on 9.7.91. It is a delay of nearly 4 months. Thereafter it took another 3 months for the authorities to finalise the case for passing the detention order. On one occassion when a clarification was sought from the sponsoring authorities vide letter dated 22.8.91 the reply was sent only on 9.10.91, which means after a gap of 11/2 months. In these circumstances, the question for determination is whether it can be said that there was a `subjective satisfaction'' of the detaining authorities.

In Lakshaman 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. The relevant portion of that judgment reads :

".............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 prejudicail to the maintenance of essential supplies of food grains. 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 prompt action in such matters should be taken as soon as incidents like those which are referred to in the the grounds have taken place. In our opinion, the order of detention is invalid."

In T.A. Abdul Rehman v. State of Kerala, 1989(2) Recent CR 459 their Lordships of the Supreme Court held as under :

"............. 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 examiner, whether the Detaining Authority has satisfactorily explained the delay..........."

Read in the light of the foregoing observations a delay of 7 months in passing the impugned detention order, which has not been satisfactorily explained, throws a genuine doubt about the subjective satisfaction of the Detaining Authority. It is, rather interesting to note that the authorities did not move into action till after the petitioner had been allowed bail by the Court on 27.10.91. The provisions of S. 7 of the Act are meant to be used as a preventive measure and not in the form of punitive measure.

I do not agree with the learned counsel for the petitioner that there was unnecessary delay in the arrest of the petitioner on the basis of the detention order which was passed on 29.10.91; which was served on him on 7.12.91 and he was detained thereafter. The explanation of the respondent authorities that the petitioner had been playing hide and seek when the detention order were issued is accepted.

The representation made by the petitioner is dated 28.1.92 which was received by the detaining authority on 29.1.92. Parawise comments were then called from the concerned authorities which were received on 10.2.92. The representation was examined by the state Govt. and rejected on 25.9.1992. I am of the view that there has been no inordinate delay in the decision of this representation.

In view of my findings about the delay in the passing of the detention order, the same is bad in law and is hereby quashed. The petitioner shall be set at liberty forthwith.

JUDGMENT accordingly.