Surmukh Singh vs State of Punjab and anr.

G.S. Chahal, J.

By means of this criminal writ petition under Article 226 of the Constitution of India, Surmukh Singh, detenupetitioner seeks the quashing of the detention order dated 111090, annexure PI and the order dated 16591 Annexure P2 being violative of Articles 21 and 22 of the Constitution of India.

The brief allegations. on the basis of which the detention of the petitioner had been ordered under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act may be gathered from the grounds of detention, served on the petitioner.

In May 1990 the petitioner happened to come into contact with Gajjan Singh and from him he acquired knowledge about preparation of adulterated opium. Gajjan Singh gave him the information that if a mixture of 10 kg of Sugar and water was brought to a boiling temperature and mixed with intoxicant tablets and added with. I kg. pure opium, the mixture could be passed on as opium. The petitioner then purchased 1,000 intoxicant tablets from Rs. 250/ from Jagjit Singh, owner of Sheranwali Hatti, Medical Store, Main Bazar, Tarn Taran and purchased opium from Jagir Singh, resident of village Duggal and from Dulla of Gulalipur at Rs. 3,400/ per kg. From the opium so purchased he prepared adulterated opium. On 6.790 10 kg. of opium was recovered from the possession of the petitioner. Case FIR No. 52 dated 67 90 for offence under sections 18/61/85 was registered at Police Station Sadar, Tarn Taran.

The detention order Annexure P1 is dated 111091 wherein the grounds supplied relate to an order dated 111290. The respondentauthorities in the return explained that the order was, in fact, passed by the Financial Commissioner Home on 71290 and the date on Annexure P1 and been incorrectly recorded. This plea taken by the authorities seems to be correct. This being only a typographical mistake with respect to the date of the detention order, it would not materially affect the merits of the case.

The prejudicial activity was committed by the petitioner in the months of May and June, 1990 and he was arrested in July 1990. It was after a period of 5 months that the detention order was passed. The petitioner was arrested on 15291 and there was, thus, also delay in the service of the detention order.

In the return, the respondentauthorities have tried to give explanation for the delay. The proposal for detention was made by the Senior Supdt. of Police, Tarn Taran before the District Magistrate, Amritsar and it was on 111090 that the District Magistrate sent the proposal to the State Govt. The same was then examined at various levels during 151090 to 171090 and additional information was sought vide letter dated 221090. This information was supplied by the District Magistrate vide letter dated 71190 which was received in the office of the Under Secretary Home on 9190. Then the proposal remained under process till 31290, and it was only on 31290 that the case was put up before the competent authority and the detention order was passed on 71290. The explanation given by the respondent is, however, not satisfactory. It was more than 3 months after the date of arrest that the process for detention was initiated and 2 more months from the date of initiation till the passing of the order. There is, thus, force, in the contention of the learned counsel that, in that situation, grave doubts arose with respect to the genuineness of the subjective satisfaction of the detention order.

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 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 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 it 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 grounds have taken place. In our opinion, the order of detention is invalid."

In Rabindra Kumar Ghosal 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 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) Recent Criminal Reports 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.

I, thus, conclude that the detention order, after the delay, referred to above, cannot be justified. The same is liable to be set aside.

Another fact to be considered in favour of the petitioner is that he was allowed bail by the Court and in the documents supplied, he was not given copies of bail application and the bail order. He had a right to have those documents to make an effective representation. The respondent authorities made contradictory statements with respect to the fact, whether the order of bail was taken into consideration by the detaining authority. In paragraph 6(iv)(a) of the return, it was stated that the papers regarding his being released on bail were not considered by the detaining authority, but this fact was within the knowledge of the detaining authority when the order of detention was passed. In paragraph 6(1) of the return, it was stated that the fact of referring to the bail after expiry of 90 days of his arrest had been duly placed before the Detaining Authority and it was after due application of mind that the detention order was passed. It was not disputed that copies of the bail order and bail application were not supplied to the petitioner.

In M. Ahmadekutty v. Union of India, 1990(2) SCC 1, their Lordships made the following observations with respect to the nonsupply of bail order which had been considered for passing the detention order :

"...Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired and if those had been considered, they would be documents relied on by the detaining authority though not specially mentioned in the annexure to the order of detention and those sought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have, therefore, no alternative but to hold that it amounted to denial of the detenu''s right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of detenu illegal and entitling the detenu to be set at liberty in this case."

This view was followed in P.U. Abdul Rahiman v. Union of India and ors., 1991(1) Recent Criminal Reports 589 : 1991 Cri. LJ 430.

The argument of the learned counsel is, thus, well founded and I hold that having not been supplied with copies of the bail order and the application for bail, on the basis of which bail order was passed, he could not make an effective representation and on that ground also the detention order is liable to be set aside.

In the light of the foregoing discussion, I allow the writ petition and set aside the impugned detention order. The petitioner be released forthwith if not wanted in any other case.