Sukhdev Singh @ Sukha vs State of Punjab

J.S. Sekhon, J.

In this habeas corpus writ petition, Sukhdev Singh, detenu, seeks quashment of the order of his detention, Annexure P1, dated 19.10.1990 passed by the State of Punjab under the provisions of Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called as `the Act'') with a view to preventing him from indulging in smuggling of gold activities as a carrier inter alia contending that the representation filed by the petitioner after rejection of his earlier Criminal Writ Petition No. 75 of 1991 by G.S. Chahal, J. on 24.10.1991 was not decided with due and utmost promptitude.

Brief facts of the case relevant for the disposal of this writ petition are that members of 74 Battalion of the Border Security Force laid a special Naka on the left flank of B.O.P. approximately at a distance of 500 yards from the International Border on 3.5.1990. At about 0300 hours, naka party observed two carrirs, coming from Pakistan to India. When these carriers were just at a distance of 36/40 yards from the party, they were challenged. One person out of them fired at the nakaparty. The members of the naka party grappled with the intruders while the leading carrier started running towards Pakistan side. The naka party encircled the area and overpowered the said intruder. On personal search of Gurmel Singh son of Surta Singh, 50 gold biscuits were recovered. The other person apprehended at the spot was Karam Singh alias Karma alias Kala son of Joginder Singh and one bandolier of Khaki jean cloth tied around his waist containing 50 gold biscuits were recovered from his possession. The petitioner was also apprehended at the spot and from one bandoiler tied around his waist, 50 gold biscuits were recovered. These gold biscuits along with other articles recovered from the possession of Gurmel Singh companion of the petitioner were handed over to the Customs Authorities, Amritsar by the Border Security Force on 4.5.1990. The Custom Authorities seized these articles under Section 110 of the Customs Act, 1962 on reasonable belief that the same have been smuggled into India from Pakistan in contravention of the provisions of Import Control JUDGMENT No. 17/55 (as amended) issued under Section 3(1) of the Imports and Export (Control) Act, 1947 read with Section 11 of the Customs Act, 1962, Section 13(1) of the Foreign Exchange Regulation Act, 1973 and under Section 8(1) of the Gold (Control) Act, 1968. Sukhdev Singh petitioner also tendered a written statement before the Superintendent, Customs Preventive Station, Attari under Section 408 of the Customs Act, 1962 disclosing that on 28.4.1990, Pappu son of Kartar Singh came to his chakki at about noon time and persuaded the petitioner to earn quick money. The petitioner then associated the aforesaid Karam Singh and thereafter, in pursuance of the proposal, the petitioner and Karam Singh agreed to work as carriers of gold from Pakistan to India. The petitioner also disclosed that on 9.4.1990 they went to the tubewell of Pappu who asked the petitioner to stay there and that he will contact them during the night. Pappu returned at about 8 p.m. accompanied by one more person named Babu Chauhan. Pappu after introducing these persons with Babu will work as their guide in Pakistan and handed over a chit given to him by Jagir Singh. Thereafter, these persons left the tubewell and preceded towards border. After crossing the border, they went to the house of one Answar Tunda where the petitioner handed over a reference letter of Jagir Singh to Anwar Tunda and the aforesaid Anwar Tunda handed over the said gold to the petitioner and while entering India, the petitioner and others were apprehended by the Border Security Force. Karam Singh alias Karma also tendered similar statement admitting these facts. The petitioner has alleged that he and companions were arrested by the Customs Staff on 4.5.1990 and remanded to judicial custody by the Court of Chief Judicial Magistrate, Amritsar. The petitioner and his companions moved a joint petition before the Chief Judicial Magistrate, Amritsar, on 4.6.1990 and were released on bail on 6.7.1990. Due to the above referred activities, the Enforcement Staff of Custom, Amritsar, sent a proposal to the State Government to pass the above referred detention order and accordingly the impugned order was passed. It was served upon the petitioner on 24.11.1990.

The petitioner then filed Crl. P.W. No. 759 of 1991 which was dismissed by G.S. Chahal, J. on 24.10.1991. Thereafter, the petitioner filed representation dated 19.2.1992 through his counsel for revocation of the detention order before the State Government and the copy of the same was also forwarded to the Secretary to the Government of India, Ministry of Finance, New Delhi.

The grouse of the petitioner in this writ petition is that these representations were not disposed of by the State Government as well as by Union of India promptly. It is maintained that nonsupply of the copy of the report/proposal prepared by the sponsoring authority vitiates the detention order in view of the mandate enshrined in Article 22(5) of the Constitution of India. Various other grounds have also been taken in this petition which are not relevant as these were considered and rejected in the earlier writ petition.

In the counteraffidavit filed by Sh. Roop Chand, Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, it is maintained that the representation dated 19.2.1992 submitted by the detenu through his counsel was received in the Ministry (North Block) on 21.2.1992 and it was sent to the COFEPOSA Unit on 24.2.1992 and on the same date, the considering authority called for the comments of the sponsoring authority. The comments were forwarded vide letter dated 31.3.1992, received in the Ministry on 2.4.1992. The case was then processed and put up before the concerned authority on 3.4.1992, who considered the representation and rejected the same on the same date. Thus, it was maintained that, there was no inordinate delay in disposing of the representation of the appellant.

Shri S.K. Bhalla, Deputy Secretary to Government Punjab, Department of Home Affairs and Justice, Chandigarh, also filed a counteraffidavit on behalf of respondent No. 1, inter alia contending that the representation of the detenu was disposed of expeditiously as the representation dated 19.2.1992 was received by the answering respondent on 22.2.1992, it was examined by the legal agency on 2.2.1992 and the opinion of the State Law Department was sought on 4.3.1992. Ultimately, it was rejected on 9.3.1992 by the competent authority after going through its merits. A preliminary objection was also raised regarding the maintainability of the present writ petition, as the earlier writ petition (No. 759 of 1991), challenging the detention of the petitioner was dismissed by G.S. Chahal, J. on 24.10.1999. It was also maintained that the representation on behalf of the detenu by his counsel was not maintainable and that the detenu had filed no representation before the Superintendent, Central Jail, Patiala, where he was confined.

Sh. Rajinder Singh, Superintendent, Central Jail, Patiala, also supported the above referred version of Shri S.K. Bhalla.

I have heard the learned Counsel for the parties, besides perusing the record.

Regarding the maintainability of this writ petition, on fresh grounds, which were not available to the detenu at the time of filing the earlier writ petition, or on the grounds not taken by the detenu in the earlier writ petition, it transpires that this controversy has been well settled by the Apex Court in Lallubhai Jogibhai Patel v. Union of India and others, AIR 1981 SC 728 by holding that doctrine of constructive res judicata is confined to civil action and civil proceedings only and not applicable to illegal detention. In para 13 of the judgment, the Apex Court has observed as under :

"The position that emerges from a survey of the above decisions is that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings. This principle of public policy is entirely inapplicable to illegal detention and does nor bar a subsequent petition for a writ of habeas corpus under Article 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief."

This Court in Ashok Kumar Anand v. Union of India, 1990(1) Recent Criminal Reports 605 : 1990 Crl. L.J. 1386 , had also taken a similar view by holding that the petitioner cannot be debarred from taking any of the grounds not taken by him in the earlier writ petition challenging this detention order on principles of constructive res judicata or estoppel. Admittedly, the detenu has filed the representation dated 19.2.1992 after the dismissal of Civil Writ Petition No. 759 of 1991 on 4.10.1991. It is not disputed that in the said writ petition, the petitioner had not taken the ground that nonfurnishing of the copy of the proposal for his detention had resulted in debarring the petitioner to file the representation effectively. Thus, the present petition on these two grounds is maintainable.

There is no force in the contention of learned Counsel for respondent No. 1 that the detenu cannot file representation through his counsel. On the other hand, if the counsel was well instructed of the facts of the he case would be in a better position to give final shape to the representation. Similar controversy came under discussion of the Supreme Court in Piara Singh v. State of Punjab, AIR 1987 SC 2377. In para 8 of the judgment, the Apex Court held that there is nothing in law which prevents the representation made by an Advocate on behalf of the detenu and if there was any difficulty in this regard, the inquiry should have been made from the Advocate if he had the authority from the detenu to represent him. It was further observed that a mere factum that the representation made by the Advocate does not explain the delay in making the representation, the same cannot constitute any explanation for the delay in dealing with it. In the case in hand also the State Government had not made any inquiry from the detenu or from his Advocate whether the latter was duly authorized to file such representation.

Regarding delay in disposal of the representation, it transpires that the State Government has promptly disposed it of, because it was received by the office of the answering respondent No. 1 on 22.2.1992 and after getting it examined from legal agency and the State Law Department, it was dismissed on 9.3.1992.

However, there is certainly inordinate delay in disposing of the representation filed by the detenu before the Central Government. Under Section 11(1) of the COFEPOSA Act, the Central Government has been given power to revoke the order of detention passed by the State Government. Thus, it cannot be said by any stretch of imagination that the filing of representation before the Central Government was merely a futile exercise. In the case in hand, the sponsoring authority did not file reply in order to explain as to why it failed to give comments on the representation till 31.3.1999, although it was despatched by the sponsoring authority on 24.2.1992, as averred in the affidavit by Sh. Roop Chand, Under Secretary to the Government of India. Admittedly by then, the sponsoring authority had collected all the material against the detenu as on its proposal the above referred detention order was passed. It is not even indicated in the counteraffidavit of Sh. Roop Chand that detenu had taken up some fresh grounds which required sufficient long time to verify. Consequently, there was 4 days unexplained delay on the part of the sponsoring authority in furnishing comments to the representation which would clearly amount to violation of Article 22(5) of the Constitution, so as to render the detention unconstitutional and void. The observations of the Apex court in Tara Chand v. The State of Rajasthan and others, AIR 1980 Supreme Court 1361 can be safely referred to in this regard. In that case, the representation of the detenu received by the President''s Secretariat on 9.10.1979 was not disposed of by the Finance Ministry of Union Government at all. Under these circumstances the order of detention was quashed by holding that under Section 11(1) of the COFEPOSA, the Central Government was competent to revoke or modify the order passed by the State Government and thus was bound to decide the representation with utmost expedition.

The Apex Court in Julia Jose Mavely v. Union of India and others, 1922 Crl. L.J. 109 had considered the undue and unexplained delay of 28 days in forwarding the comments of the sponsoring authortiy having rendered the detention order as inval.

Faced with the above situation, Mr. Ranjan Lakhanpal the learned Counsel for Union of India, contends that as the High Court in Cr. W.P. No. 759 of 1991 had rejected the challenge of the detenu to the detention order the delay in disposing of the representation by the Union Government was of no consequence. There appears to be no force in this contention, because at the time the earlier writ petition was dismissed on 4.10.1991 by this High Court, the petitioner had not made any representation to the State Government or Union of India for revoking his detention order. The jurisdiction of the High Court in such like matters is limited to legal aspects of the controversy and not to the factual merits of the case on the basis of which the detention order was passed, whereas Union of India can examine the factual aspect on representation. The observations of the Apex Court in para 9 of Piara Singh''s case (supra) can be safely relied upon in this regard. In that case, the earlier decision of the Apex Court in Smt. Asha Keshavrao Bhosale v. Union of India, AIR 1986 SC 283 was distinguished on facts. The Apex Court in para 9 of the Piara Singh''s case observed as under :

"It was next sought to be contended by learned Counsel for the respondent that the delay in dealing with the representation had caused no prejudice to the petitioner because it admitted that he preferred writ petition against his detention to the Punjab and Haryana High Court and that writ petition was dismissed by the High Court. In our view this submission also cannot sustain order of detention. It is true that the writ petition preferred by the petitioner to the Punjab and Haryana High Court was dismissed, but we are informed that a Special Leave Petition filed against that decision is pending in this Court. Moreover, at the time when the writ petition was dismissed, the petitioner had not made any representation to the State Government at all and hence the dismissal of his writ petition by the High Court cannot be regarded as any substitute for consideration of his representation by the State Government, which unlike the Court, might be entitled to go into the factual merits of the grounds forming the basis of detention order. In support of his contention, the learned Counsel for the respondent sought to rely on the decision of this Court in Smt. Asha Keshavrao Bhosale v. Union of India (supra) in which case it was held that the delay of about two months in disposal of the representation made by the petitioner on behalf of the detenu to the Chief Minister against his order of detention did not vitiate the order of detention. That case, however, is of no assistance to the respondent because it turns on its own facts. A detailed representation was made in that case by the Secretary, Khed Taluka Maratha Seva Singh which espoused the cause of the detenu and challenged the detention. That representation was received on 29th November, 1984 in the Secretariat of the Chief Minister. It was forwarded to the Home Department on 3rd December, 19884 and disposed of expeditiously namely, on 12th December, 1984. The rejection of that representation was communicated on 13th December, 1984. The High Court which dismissed the petition of the detenu has considered the contents of both the representations and held that the representation made by the petitioner was the second one and based on the same grounds and delay in disposing of that representation did not prejudice the case of the detention. The conclusion was confirmed by the Supreme Court. The facts in this case are nowhere comparable to the facts of that case and hence the principles laid down in this case have no application to the case before us."

The facts of the case in hand are also almost the same as those of Piara Singh''s case (supra) as herein also the detenu had not filed any representation before the dismissal of his earlier writ petition.

In view of the above referred findings regarding the delay in disposal of the representation on behalf of Union of India, there is no need to go into the other contention of the petitioner that nonsupply of the copy of the proposal of the sponsoring authority to him had resulted in debarring the detenu from filing effective respondent against his detention.

Consequently, for the reasons recorded above, the delay in disposing of the representation of the detenu on the part of the Union of India had certainly resulted in rendering the order of detention unconstitutional as it has clearly amounted to the violation of the mandate contained in Article 22(5) of the Constitution. Consequently, the order of detention is set aside by accepting this petition. The detenu be released forthwith if not required in any other case.