Sukhbir Singh vs The State of Punjab

The Petitioner assails his detention in pursuance of order dated 20.3 1987, Annexure R-1, passed u/s 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the Act). The material part of it reads:-

Whereas the Governor of Punjab is satisfied that you Sukhbir Singh s/o Sh Tara Singh, r/o 44/C, Gopal Nagar, Majitha Road, Amritsar, have been engaging in concealing or keeping smuggled goods and dealing in smuggled goods, and therefore it is necessary to make an order directing that you Sukhbir Singh be detained with a view to preventing you from indulging in the above mentioned prejudicial activities infuture.

As per the grounds of detention, annexure P-2, the order is concededly founded on the two alleged prejudicial activities of the Petitioner dated 15 9.1985 and 17.10.1985 when some smuggled gold and foreign currencies were recovered from his possession by the Customs authorities. It is also not in dispute that for the first activity dated 15.9.1985, no case of any sort was registered against him though for the second he is being prosecuted for the violation of the various provisions of the Customs Act, 1962 and Import/Export Control order read with Import/Export Control Act, 1947. The challenge to this order of detention is on two counts, (i) it suffers from non-applicability of mind and (ii) the delay that had occurred between the last prejudicial activity of the Petitioner and the date of passing the order and then in its execution by actually taking the Petitioner into custody is indicative of the fact that the satisfaction of the detaining authority as recorded in the order was not genuine or well merited.

So far as the first aspect of the matter is concerned, the contention of Mr. Mattewal, the learned Counsel for the Petitioner is that by the time the impugned order was passed on 22.12.1986, the Petitioner had applied and been released on bail by the Court in the case referred to above and this aspect was not taken into consideration by the detaining authority. In other words, the stand of the learned Counsel is that the pendency of the proceedings against the Petitioner in a Court of law and the stage the same had reached, more particularly the factum of bail having been granted to him, were not present to the mind of the detaining authority and this by itself is good enough an indication that the said authority never applied its mind to the facts of this case as earnestly as it should have. According to the learned Counsel, the order appears to have been passed just mechanically. In order to sustain this stand of his, he places firm reliance on Harbhajan Singh v. State of Punjab 1987 (2) C.L.J. (C. Cr. & Rev) 446, Anant Sakharam Raut Vs. State of Maharashtra and Another,

Having perused these judgments, I find considerable merit in this stand of the learned Counsel. Though in the reply filed on behalf of the Respondent authority it has been repeated ad nauseam that it applied its mind before passing the impugned order, yet the factual averments made by the Petitioner in this regard with regard to the pendency of the judicial proceedings against him and his having been granted bail etc. have not been adverted to at all In somewhat similar circumstances it has been observed by their lordships of the Supreme Court in Anant Sakharam''s case (supra): -

There is absolutely no mention in the order about the fact that the Petitioner was an undertrial prisoner that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention.

It is thus apparent that the case of the Petitioner is completely covered by these observations made by the final Court,

So far as the second aspect of the matter, as noticed above, is concerned, Mr. Mattewal again relies on two judgments of the apex Court in Sk. Nizamuddin Vs. State of West Bengal, Sk. Serajul Vs. State of West Bengal, In the last mentioned case, the order of detention had been passed after about 7 months of the last prejudicial activity attributed to the Petitioner and it was executed after about 6 months by actually detaining the Petitioner. Their Lordships observed:-

There was thus delay at both stages and this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate; Burdwan recited in the order of detention. It would be reasonable to assume that if the District Magistrate of Burdwan was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the Petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude both in making the order of detention as also in securing the arrest of the Petitioner, and the Petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities.

In the light of these observations, it is urged by Mr. Mattewal that in the instant case too there is delay at both this stages, i.e., in passing the detention order after about 5 months of the last prejudicial activity attributed to the Petitioner and in detaining him after another 51/2 months i.e. 9.9 1987 and it clearly indicates that the satisfaction referred to by the detaining authority in the impugned order annexure P-1, was not genuine or well based. All that has been said in reply by the Respondent-authority is that the time that elapsed between the alleged nefarious activity indulged into by the Petitioner and the passing of the impugned order on 20.3.1987 cannot be termed to be too long as the case against the Petitioner had to be processed at various stages and the information against him had to checked and cross-checked before the passing of the said order. Similar is the stand with regard to the delay in execution of the impugned order after 51/2 months. Nothing more than that the Petitioner was concealing himself and was not available to the police authorities is said in the written statement.

Having perused the reply in detail, I however, do not feel satisfied with any of these explanations. Concededly, the activities of the Petitioner became known to the authorities right on the two dates referred to above i.e. 15-9-1985 aad 17-10-1986 when the alleged recoveries of smuggled gold and foreign currencies were effected from him. That more enquiries were required to be made or were actually made by the authorities with regard to the detention of the Petitioner has not been explained anywhere. But for saying that the file kept on moving from A authority to B authority why this was necessary for the purpose of passing the impugned order of detention nothing more has been said in the reply. Similarly, it is too much to believe that the Petitioner was not available to the police for the execution of the impugned order of detention particularly when the assertion made on his behalf that he had regularly been attending the various hearing in the trial referred to above is not controverter. Further, it looks surprising in the light of the explanation offered in the reply that the Petitioner was not traceable, that no resort was made to the provisions of Section 7 of the Act which entitled the detaining authority to move the Magistrate concerned to take action under Sections 82 to 85 of the Code of Criminal Procedure. In such a situation, not only the movable or immovable properties of the Petitioner could be attached but other stringent action in accordance with law could also be taken against him. Concededly, no such steps were taken by the authorities. I, therefore, have no hestitation in accepting the stand of the Petitioner''s counsel that the authorities were too casual in making the impugned order effective or there was any genuine satisfaction about the detention of the Petitioner The impugned order appears to be punitive in nature than to be preventive.

For the reasons recorded above I allow this petition and while setting aside the impugned order annexure P-1, direct that the Petitioner be set at liberty forthwith.