Tarsem Singh vs Union of India

G.S. Chahal, J.

The petitioner (presently confined to Central Jail, Amritsar) has moved this criminal writ petition under Article 226 of the Constitution of India for quashing of the detention order F. No. 673/235/91CUS.VIII dated 27.5.1991, Annexure P.1; passed u/s 3(1) of the COFEPOSA Act, 1974 and the Grounds of Detention dated 27.5.1991, Annexure P1/A and the Confirmation JUDGMENT F. No. 673/235/91CUS. VIII dated 8.10.1991, Annexure P3.

The grounds on which detention of the petitioner has been ordered may be enumerated from Annexure P1/A. A special operation was planned by 45, Bn BSF of Wan, on basis of information that gold biscuits of foreign origin would be smuggled from Pakistan. A surveillance was kept on the movements of the villagers, going to their fields. At about 10.00 hours on 1.11.1990, four persons whose identification was subsequently established as Tarsem Singh, Kuldeep Singh, Lakhwinder Singh and Beera Singh, were noted by the surveillance party, going to the field of Joginder Singh and Sardool Singh. They, having tried to slip away on seeing the BSF party, were apprehended. A search was carried out in the presence of members panchayat of Wan. 160 gold biscuits along with one rupee coin were recovered from the possession of the petitioner; 120 gold biscuits from the possession of Kuldeep Singh; 100 gold biscuits from the Lakhwinder Singh while from Beera Singh''s possession, nothing was recovered. The recovered gold was handed over to the Customs Preventive Staff, Bhikhiwind. It was found that Tarsem Singh petitioner and others did not have any documentary evidence entitling them to import that gold. They had, thus, contravened the provisions of Import (Control) JUDGMENT No. 17/55 dated 7.12.55.

On 15.11.1990 the petitioner suffered a statement to the effect that on 9.11.1990 one Mastan Singh contacted him at his house and told him that a ditch had been prepared in the field of Sardool Singh, close to the Pakistan border and on the previous night one Hazura, a Pakistan smuggler had kept the smuggled 380 gold biscuits in that ditch. Mastan Singh asked the petitioner to bring that gold from the field and offered Rs. 500/ per hundred biscuits. On the following day, the petitioner visited the field and confirmed the concealment of the consignment, but on being challenged, he could not bring the gold. On the next day he contacted his younger brother Kuldeep Singh and told him to go to the spot and keep a watch and that the consignment was to be brought to the village by concealing it in camel''s cushion. Kuldeep Singh then left for the field, along with a camel; while the petitioner followed him with meals and he was also accompanied by Beera Singh who was employed as a siri with his uncle Mohinder Singh. Both the petitioner and Beera Singh obtained slips from the BSF officials, but thereafter they were stopped by the BSF Staff. Similarly, Kuldeep Singh and Lakhwinder Singh were also detained. From the field of Sardool Singh, the BSF recovered gold biscuits and the petitioner informed the BSF officials that he was to dig out the gold from the field and to deliver it to Mastan Singh son of Dheera Singh. Statements were also suffered by Kuldeep Singh, Lakhwinder Singh and the petitioner was arrested on 13.11.1990 and ultimately bailed out by the Court of the Chief Judicial Magistrate on 29.11.1990. Summons were also issued to Mastan Singh on 22.11.1990, 8.12.1990 and 28.12.1990, but they could not be served on him.

Sh. A.S. Sandhu, learned counsel for the petitioner, has challenged this order on the basis that there was a delay in the passing of the detention order and that fact alone will show that there was no application of mind by the detaining authority.

The `prejudicial activity'' for which detention of the petitioner has been ordered is dated 1.11.1990 and the detention order was passed on 27.5.1991. The petitioner was detained on the basis of that order on 16.7.1991.

In the return, the respondent authorities have given the following details as to the time consumed in passing the detention order :

"Para 6: The case was also booked against the petitioner on the basis of statements of persons apprehended on the spot along with the contraband gold on 1.11.1990, but the detention orders were issued on 27.5.1991. During the intervening period the petitioner did not appear before the Customs despite summons issued to him thrice. Moreover statements of S/Shri Jasbir Singh s/o Shri Dalip Sigh Sarpanch and Jangir Singh S/o Pal Singh. Member of Panchayat who were witnesses to the recovery of contraband gold were recorded only on 25.2.1991. The statement of Sh. J.K. Rudola, Assistant Commandant, BSF who had effected the seizure could be recorded only on 22.3.1991 as he was transferred to his parent battalion. On completing investigation, some time was taken in formulating proposal and combining the material. Thereafter the case was submitted to detaining authority who also took his own time in considering all the material available on record, in formulating grounds of detention and detention order. Thus, there is no undue and unexplained delay in passing 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 dated of incidents. Dealing with the matter of delay, their Lordships made the following observations :

"........Indeed more 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 food grains. 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 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 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 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 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 rest 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.

In Sk. Nizamuddin v. State of West Bengal, AIR 1947 SC 2353 the delay 21/2 months in arresting the detenu pursuant to detention order was considered to be a ground to doubt the subjective satisfaction of the District Magistrate.

The facts mentioned in the return do not give a complete detail of the period spent in the preparation of the detention order and I am of the view that the delay has not been properly explained. The same gives rise to a genuine doubt with respect to the "subjective satisfaction" of the detaining authority and on that basis alone, the impugned detention order is illegal.

The learned counsel for the petitioner has further argued that he was not supplied with the particulars of the bail application and the bail order although these documents were taken into consideration by the detention authority. In the reply, it was stated that the facts of moving a bail application and bail order were very much to the knowledge of the petitioner and even if the copies were not supplied, the same did not affect his right to make an effective representation. Thus, the fact that these documents were not supplied is not disputed. A similar matter was considered by their Lordships of the Supreme Court in M. Ahmadekutty v. Union of India, 1990(1) Recent CR 423 : 1990 (2) SCC 1 and their Lordships made the following observations :

".......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 specifically 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 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."

I, thus hold the view that the respondentauthorities having failed to supply the petitioner with the copies of bail application and bail order passed thereon, had interfered with the right of the petitioner to make an effective representation and on that ground also the impugned detention order is liable to be set aside. I hereby accept the criminal writ petition; set aside the detention order and direct that the petitioner be released forthwith.