Swinder Singh alias Badru alias Kairon vs State of Punjab

Jai Singh Sekhon, J.

In this habeas corpus petition, Swinder Singh, petitioner seeks the quashment of the detention order, Annexure p2 dated 29.10.1991 of the State Government passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short `COFEPOSA''), inter alia on the grounds of inordinate delay in passing the detention order against the petitioner from the last prejudicial activity; delay in disposing of his representation and delay in serving the detention order as well as on the ground of nonapplication of mind by the detaining authority.

In brief the facts relevant for the disposal of this petition figuring in the grounds of detention. Annexure P3, served upon the petitioner are that on 27.2.1991, on the basis of secret information, the Border Security Force headed by the Joint Assistant Director (G), Amritsar, laid a naka about 200 years from Border Security Force Headquarters, Bhikhiwind along with BhikhindAmritsar Road. At about 1430 hours a red colour tractor driven by Sucha Singh son of Gurbachan Singh of village Naushera Dhalla, Police Station Gharinda was signalled to stop. Sucha Singh, aforesaid stopped the tractor at a distance of about 50 yards away from the naka party and managed to escape. The party then searched the tractor and recovered 310 gold biscuits of foreign markings. These gold biscuits were ultimately found to be of the purity of 24 carats. It was found during investigation on 3.3.1989 that the tractor belonged to Gurbachan Singh of Naushera Dhalla. On 5.3.1991, aforesaid Gurbachan Singh was interrogated and he made voluntary statements on that day as well as on the next day before the Superintendent, Customs Preventive, Amritsar that on 20.8.1991 at about 1000 hours, Sucha Singh and his friend Swinder Singh (i.e. the petitioner) had taken the tractor from his house on the pretext of getting a new battery installed saying that they would return after three four days after seeing Holla Mohalla Fair at Anandpur Sahib. During further investigation, it was found that the petitioner and aforesaid Sucha Singh has managed to escape with 80 gold biscuits on 27.2.1992. On 21.3.1991, again on the basis of secret information, the CUstom Preventive Staff, Amritsar, held a naka on the link road connecting Baba Budha Sahib Gurdwara and at 10.30 p.m. the petitioner along with aforesaid Sucha Singh was arrested while coming from the Gurdwara side. On search, one vansali of cotton cloth of cream colour containing seven packets of ten gold biscuits each and eight gold biscuits loose, totalling 70 gold biscuits were recovered. These gold biscuits were bearing foreign markings. The petitioner along with Sucha Singh was then taken to Customs House, Amritsar, as both of them failed to produce any documentary evidence or license for lawful import/acquisition and transportation of recovered gold. Swinder Singh petitioner on interrogation by the Superintendent, Customs Preventive Bhikhwind also made voluntary statements on 22.3.1991, 24.3.1991 and 8.3.1991 claiming ownership of 310 gold biscuits and admitting that he along with Sucha Singh managed to escape after leaving the tractor at the place of naka. The petitioner also admitted this recovery of 78 gold biscuits. It was further disclosed that those 78 gold biscuits were required to be handed over to one Balwinder Singh alias Billa son of Amrit Singh. The petitioner further disclosed that before 1984, there was not much restriction on the border and he had developed acquaintance with one Hamid of village Padhana (Pakistan) and that the petitioner crossed to Pakistan and settled terms with Hamid. The petitioner also disclosed having joined Sucha Singh in smuggling of gold and that aforesaid Billa settled to pay Rs. 17,000/ for every 100 gold biscuits, out of which Rs. 5,000/ per 100 gold biscuits were to be given to Dyala and the rest was to be equally shared by the petitioner and Sucha Singh. Under these circumstances, on the basis of this information, the Customs Authorities searched the house of Dyala in village Naushehra Dhalla on 24.3.1991, but aforesaid Dyala was found absconding from his house. The Customs Authorities then summoned aforesaid Balwinder Singh and Dyala and other persons named by the petitioner, but these summonses remained unserved with the remarks by the Postal Authorities that these persons had left for some unknown place since long. The Customs Authorities then pasted summons at the known residential premises of Kanwarjit Singh alias Kanwar Pehalwan on 9.4.1991 and Gurdial Singh alias Dyala and Balwinder Singh alias Billa on 10.4.1991 and finally summonses under registered cover were rent for 24.4.1991, but those letters were also received with the report by the Postal Authorities that Kanwarjit Singh had gone out of station, while there was no person by the name of Balwinder Singh alias Billa in village Narli. The petitioner along with Sucha Singh was then arrested on 22.3.1991 and remanded to Customs custody upto 26.3.1991 by the Deputy Magistrate. The petitioner was ordered to be released on bail by the Additional District Judge, Amritsar, on 27.5.1991. On account of the above referred activities of the petitioner, the Customs Authorities considered this a fit case for detaining him under Section 3(1) of the COFEPOSA Act, with a view to prevent him from indulging in transporting of smuggling gold.

As already referred in their petition, the petitioner seeks the quashment of the order of detention on the above mentioned grounds.

In the counteraffidavit filed by Sh. S.K. Bhalla, Deputy Secretary to Government, Punjab (Home Department) the allegations levelled by the petitioner in the petition have been controverted. It is further averred that the representation of the petitioner dated 28.1.1992 was forwarded by the Superintendent of Jail, Amritsar, on that very day and received in the office of the Answering Respondent on 29.1.1992 after calling parawise comments of the State Government. The representation was got examined by the State Government and was rejected on 20.12.1992 and the same was conveyed to the petitioner through Superintendent, Central Jail, Amritsar. After examining the whole matter, the proposal was sponsored on 19.7.1991 to the State Government for detention of the petitioner, which was received in the office of the Answering respondent on the same day and the proposal was examined by the legal agency (CID) from 22.7.1991 to 4.7.1991 and again the proposal was received by the Answering respondent on 8.8.1981 after removing the objections. The case was further examined by the legal agency (CID) from 14.8.1991 to 16.8.1991. Some additional information was called from the sponsoring authority vide letter dated 20.8.1991. The matter was again examined by the legal agency (CID) from 7.10.1991 to 9.10.1991. In the light of the information received from the sponsoring authority and ultimately on the basis of information, the proposal for passing the detention order of the petitioner was examined in the State Law Department on 18.10.1991, the formal order was issued on 23.10.1991. It is further maintained that some holidays had also intervened during this period.

The delay in serving the detention order was attributed to the conduct of the petitioner in playing hide and seek with the police.

In a separate counteraffidavit, Rajinder Singh, Superintendent, Central Jail, Patiala, had also supported the above referred averments in the return filed by Shri S.K. Bhalla.

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

According to the grounds of detention, served upon detenu, the last prejudicial activity relates to 2031991, when the petitioner was apprehended and 78 gold biscuits were recovered from his possession. It also transpires from the grounds of detention that after interrogating the petitioner, the Customs Authorities tried to contact Dyala and many other persons mentioned therein, but those persons could not be contacted till 24.3.1991. Admittedly, the petitioner was released on bail under the orders of the learned Additional District Judge, Amritsar, dated 27.5.1991. There is no indication from the grounds of detention or from the return filed by the respondents as to why the sponsoring authority had not sponsored the case of the detention of the petitioner under Section 3 of the Act till 19.7.1991. Thus, this gap of little less than two months would certainly result in snapping the nexus between the last prejudicial activity of the petitioner and passing the detention order.

The matter does not rest here as the answering respondents on the above referred proposal dated 19.7.1991 did not act promptly as the detention order was passed on 23.10.1991 as per the averments of the respondents in the return, although the formal order was issued on 29.10.1991.

The Apex Court in Jagannath Biswas v. The State of West Bengal, AIR 1975 SC 1516 has observed that the gap of seven months between the last prejudicial activity and passing of the detention order reflects adversely on the bona fides of subjective satisfaction of the detaining authority and had quashed the order of detention under Section 3 of the Maintenance of Internal Security Act, 1971.

No doubt, no hard and fast rule can be laid down regarding the inordinate delay between the last prejudicial activity and passing of the detention order which would snap the nexus between such incident and the order of detention, as it depends on the facts and circumstances of each case. In Shri Shiv Ratan Makim v. Union of India and others, AIR 1986 SC 610, it was held under the circumstances of that case that the delay in passing the detention order from the last prejudicial activity stands cogently explained. It was further observed that no hard and fast rule can be laid down regarding the longivity of the period between the date of incident and the date of order of detention for drawing an inference that there is no nexus between the last prejudicial activity of the petitioner and passing the detention order.

The above referred view of the Apex Court does not support the case of the respondents in the case in hand, as they had failed to explain the delay in last prejudicial activity and passing of the detention order.

The learned Counsel for the respondents relying upon the recent judgment of the Supreme Court in Abdul Salam alias Thiyyam v. Union of India and others, AIR 1990 SC 1446, contended that the delay in the case in hand stood cogently explained and would not render the detention order as invalid due to snapping of nexus between last prejudicial activity and passing of the detention order. In the said case, the detention order was passed after a lapse of eight months. On the facts and circumstances of that case, the apex Court had held that this delay in passing the detention order took well explained in the return filed by the detaining authority. Thus, the above referred authority is of no help to the respondents under the facts and circumstances of this case.

Consequently, the delay/gap of more than seven months between the last prejudicial activity and the detention order certainly results in snapping the nexus between these two and would render the detention order invalid.

The next contention of the petitioner relates to delay in disposal of the representation. In paragraph 3 of the petition, the petitioner had averred having submitted the representation dated 21.1.1992 before the Superintendent, Central Jail, Amritsar, who in turn had forwarded the same to the detaining authority, but the same has not been decided so far. In corresponding para 3 of the return filed by Sh. S.K. Bhalla as well as by the Superintendent, Central Jail, Patiala, it is maintained that the representation datd 28.1.1992 was received by the Superintendent Jail on that very day and was received in the office of the detaining authority on 29.1.1992 and after obtaining parawise comments of the sponsoring authorities on 10.2.1992, the representation was examined by the State Government and rejected on 20.2.1992. This order was conveyed to the petitioner through Superintendent, Central Jail, Amritsar. Even if it is taken that the letter dated 30.1.1992 asking for the parawise comments of the sponsoring authority would take one day in reaching Amritsar from Chandigarh, it transpires that the sponsoring authority, has received the letter on 31.1.1992. There is no explanation as to why seven days were taken in finalising the parawise comments by the sponsoring authority as parawise comments dated 7.2.1992 were received by the answering respondent on that very day. Again, there is no explanation of the respondents as to how it had taken full ten days in disposing of the representation from 10.1.1992 to 20.2.1992. Thus, this delay in disposing of the representation had rendered detention order invalid. The observation of the Apex Court in Julia Jose Mavely v. Union of India and others, 1992(1) Recent Criminal Reports 606 can be safely referred to in this regard. In that case, the delay of 28 days in forwarding the comments by the sponsoring authority on the ground that the authority was at a far off place and the delay had occurred in postal transmission was considered untenable as the communication was sent by the speed post. In Smt. Khatoon Begum v. Union of India and others, AIR 1981 SC 1077, the Apex Court observed that the right of a detenu to have his representation considered "at the earliest opportunity" and the obligation of the detaining authority to consider the representation "at the earliest opportunity" are not a right and an obligation flowing from either the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act or the National Security Act or for that matter any other Parliamentary or State law providing for preventive detention, but these are a right and an obligation created by the very Constitution which breathes life into the Parliamentary and the State Law and that Article 22(5) of the Constitution enjoins a duty on the authority making the order of detention to afford the detenu "the earliest opportunity of making a representation against the order" and corresponding obligation to dispose it of with utmost expedition. On facts of that case, the disposal of representation filed by Smt. Khatoon Begum on November 12, 1980, without any legal explanation was held to have rendered the detention order invalid under Section 3 of the National Security Act having resulted in violation of the safeguard provided under Article 22(5) of the Constitution.

The last grouse of the petitioner pertains to the delay in service of the detention order. The detention order was passed on 29.10.1991 and it was served on the detenu on 9.1.1992. The respondent has explained this delay in para 8 of the counteraffidavit, contending that the order of detention was sent for execution of the District Authorities, who failed to serve the detention order despite strenuous effort as the petitioner played hide and seek with the police. Ultimately the petitioner was arrested on 9.1.1992. The petitioner in corresponding para of the petition had failed to specify the dates on which he had been allegedly appearing before the court at Amritsar or before this Customs Authorities during this period. Under these circumstances, it cannot be said that there was inordinate delay in serving the detention order.

For the reasons recorded above, there is no option but to hold that the delay of seven months between the last prejudicial activity and passing of the detention order as well as the delay of 23 days in disposing of the representation filed by the petitioner had rendered the detention order as valid.

Consequently, by accepting this petition, the order of detention is hereby quashed. The detenu shall be set at liberty forthwith, if not required in any other case.