Sukhdev Singh @ Sukha vs State of Punjab

G.S. Chahal, J.

Sukhdev Singh alias Sukha by means of this writ petition under Article 226 of the Constitution of India seeks the quashing of the detention order No. 4/3/913HIII/480 dated 21.3.1991, along with grounds of detention, Annexure P1 and the confirmation order No. 4/3/913HIII(P1 INDPS) 1796 dated, Chandigarh, the 26.9.1991, Annexure P3.

The facts on the basis of which the petitioner has been ordered to be detained may be gathered from grounds of detention Annexure P1.

In the last week of January 1990, the petitioner had visited Shahjahanpur (UP) to attend the marriage of his relation. There he came into contact with one Murti Bahia through Massa Singh. Murti Bahia offered to sell opium at the rate of Rs. 3,500 per kg and undertook to deliver the article at that very rate to the petitioner at his village. Massa Singh stood guarantee and a contract for the purchase of 25 kg of opium was arrived at between the petitioner and Murti Bahia. In the first week of February 1990, the said quantity of opium was supplied by Murti Bahia and he left making a promise to bring more opium in March 1990. That opium was sold off by the petitioner and his brother Maluk Singh. In March 1990 Murti Bahia delivered another consignment of 20 kg of opium. On that occasion, the petitioner and his brother Maluk Singh had paid a sum of Rs. 80,000/ with respect to the first consignment. Murti Bahia promised to bring more opium in April 1990 and as per that agreement, he brought another consignment of 20 kg of opium which was also sold. In the second week of May 1990, Murti brought another consignment of 20 kg and left with a promise to bring further opium in July 1990. On 25.5.1990 the petitioner and his brother Maluk Singh left on a bicycle with 1 kg of opium for the purpose of selling the same. On reaching village Fathiabad, the petitioner and his brother noticed a Police picket. The petitioner ran away, leaving the bicycle and the opium. Maluk Singh was, however, apprehended, along with the opium. A case against him was registered. In July 1990 Murti delivered 35 kg of opium. A part of that consignment was sold. On 22.7.1990 the petitioner started for delivering 10 kg of opium to Jassa Singh, but was apprehended from the bus stand of village Mohanpura. Opium was recovered regarding which FIR No. 75 dated 22.6.1990 u/ss 18/61/85 NDPS Act was registered at Police Station Sirhali. During investigation, he made a statement on 24.7.1990 and admitted his indulgence in the prejudicial activities. He was released on bail by the Court on 27.10.1990.

The petitioner took a number of pleas to challenge the impugned detention order which are contained in the petition. Sh. A.S. Sandhu, learned counsel has however confined his arguments to only two aspects, first, that there was a delay in the initiation of proposal for detention and the delay in passing the order of detention and secondly, with respect to the delay in execution of the order. Sh. Sandhu has urged that the `prejudicial activity'' for which petitioner was liable related to 22.7.1990 and also with respect to the activity which took place on 27.5.1990 when his brother Maluk Singh was arrested, along with opium, while the petitioner was claimed to have escaped. No proposal was initiated at that stage.

As per return filed by the respondentauthorities, it was only on 1.1.1991 that the proposal was examined by the legal agency which continued examining the same till 8.1.1991 (the dated of initiation of the proposal is, however, not given. It is, however, claimed that the proposal was initiated after collecting the entire material). Further information was called from the sponsoring authority vide Government letter dated 10.1.1991. The ground of detention were prepared and translated; supporting material was also typed and the case was then examined on 7.3.1991. The proposal was ultimately sent to the State Law Department on 8.3.1991, where, it remained under examination till 13.3.1991 and the detention order was ultimately passed on 21.3.1991. The petitioner was detained on 28.6.1991. The order could not be served on him earlier, as the petitioner was playing hide and seek with the Police.

The "prejudicial activity " relates to 22.7.1990 and the confessional statement was made by the petitioner on 24.7.1990. It was only on 1.1.1991 that the proposal was examined by the legal agency. As I have already noted above, it is not clear as to when the proposal was initiated. It took the authorities approximately three months to complete the process and another three months to detain the petitioner. In this situation, can it be said that there wa a "subjective satisfaction" of the detaining 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 collusive but we have to see the type of grounds given and consider whether such grounds could really weigh with an offence 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 food grains 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."

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 SK. 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 the Court could doubt the genuineness of the alleged "subjective satisfaction" of detaining authority as to the necessity of detaining 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 genuineness of the "subjective satisfaction" alleged by the detaining authority.

In T.A. Abdul Rahman v. State of Kerala, 1989(2) Recent CR 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 the genuineness of 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.

In Sk. Niazmuddin v. State of West Bengal, AIR 1974 SC 2353 the delay of 21/2 months in arresting the deter pursuant to detention order was considered to be a ground to doubt the subjective satisfaction of the District Magistrate. Considering the principles enumerated in the above authorities, I am of the view that the delay in respect of the initiation of the process of detention and the delay in detention of the petitioner, have not been successfully explained and these facts give rise to a genuine doubt with respect to the subjective satisfaction of the detaining authority, which makes the grounds of detention order illegal. I hereby accept the criminal writ petition and after declaring the detention order to be illegal, order the release of the petitioner forthwith.