Punjab-Haryana High Court
Jagbir Singh vs State Of Punjab And Anr. on 24 August, 1990
Equivalent citations: 1992CRILJ1346
ORDER J.S. Sekhon, J.
1. Through this writ petition for Habeas Corpus, Jagbir Singh detenu challenges his order of detention dated 21-2-1990 passed by the State Government under Section 3 Sub-section (3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (for short called COFEPOSA Act) with a view to preventing the petitioner from indulging in smuggling the goods. This order of detention was served upon the detenu on 19-3-1990.
2. The brief re'sum'e of facts figuring in the grounds of detention Annexure P-2 served upon the detenu is that on 26-9-1989, on the basis of secret information that a resident of Patiata was coming by Air from Kubal at Rajasansi Airport, Amritsar, carrying gold concealed in the baggage or in the body, Assistant Collector Customs (Prevention) Amritsar, reached the Rajasansi Airport and started checking the passengers, with metal, detectors. During the checking, Jagbir Singh petitioner, was found carrying some metal inside his body. On further interrogation, the detenu confessed having concealed the gold in his rectum. The petitioner took out three black taped rectangular parcels from his rectum which contained 6 pieces of gold which were found to be 24 carrats gold, weighing 349. 800 grams. Some other contraband articles were also recovered from the possession of the detenu. The detenu was taken into custody and recovered articles were taken into possession. During interrogation the detenu admitted the recovery of these articles on 27th and 28th September, 1989 before the Superintendent, Customs. The Detenu also disclosed having visited Bangkok in the year 1984 and Kabul (Afghanistan) during December, 1988, February 1989 and 24-9-1989. The detenu also disclosed that he had procured the gold from some person at Kabul on behalf of Pappu and Bhupinder Singh of Amritsar, and that he used to charge some money and that on 24-9-1989 the detenu along with his brother Amarjit Singh had gone by air to Kabul at the instance of aforesaid Pappu, and that Pappu had handed over a parcel containing U. S. Dollars which was inserted by the detenu in his rectum. On reaching there, he handed over this parcel to a sardar boy who as per arrangement handed over the petitioner and his younger brother 6 (six) tiny parcels containing 12 pieces of gold and that they brought the same to Amritsar after concealing the same in their rectums and the petitioner was detected by the custom authorities and the gold was recovered from his rectum while his brother managed to escape. Under these circumstances, the custom authorities arrested the petitioner under Section 104(1) of the Customs Act and then the impugned order of detention was passed.
3. In this writ petition, the petitioner challenges the order of detention inter alia on the ground of snapping the nexus due to passage of six months between the prejudicial activity and the passing of detention order, delay of one month in executing the order of detention, on the ground of discrimination as the aforesaid Pappu and Bhupinder Singh were not detained under the COFEPOSA Act and on the ground that since his passport has been impounded at the time of his arrest, there was no chance of his indulging in similar activities in future and that this fact was not brought to the notice of detaining authority.
4. The respondents in their return have resisted this petition on the ground that there was no inordinate delay in the last prejudicial activity and the passing of detention order as this time was taken in thoroughly examining the case by sponsoring authority as well as by the detaining authority. It was also maintained that there was no delay in clamping the detention order and that the other companions of the detenu having failed to appear before the Custom authorities despite issuing of summons repeatedly, it was not a case of discrimination. It was also maintained in para 13-A of the return that every document of the criminal case is not required to be placed before the detaining authority and that the documents placed before the detaining authority were sufficient for the bona fide and subjective satisfaction.
5. I have heard learned counsel for the parties besides perusing the record.
6. Regarding the snapping of nexus due to passage of six months between the last prejudicial activity and passing of detention order, the answering respondent had explained this period in para 2 of the return which reads as under :--
In reply to the contents of this para it is submitted that the test of proximity is not to be applied mechanically by counting the number of months and days from the activities of the petitioner to the passing of the order of detention. If the time taken between the last prejudicial activity and the passing of the order of detention has been properly explained then the nexus between the prejudicial activities and the order of detention remains alive and there is no delay in passing the order of detention. The prejudicial activities indulged in by the petitioner came to surface on 26-9-1989 by the Customs authorities, Amritsar. Thereafter the entire material was collected, linked and processed in the Customs office. Further the entire material which was too voluminous was prepared and typed in English and in Punjabi which is the mother tongue of the petitioner. This was a time consuming process at the originating stage. The proposal was sent by the Customs authorities, Amritsar, after observing all legal formalities, to the Central Excise Collectorate, Chandigarh who, in turn, forwarded the same to State Govt. on 28-11-89. The proposal was received in the office of answering respondent on 30-11-1989. The proposal was examined on 1/12, 4/12 and 6-12-1989 in the Legal Agency and it was felt necessary that some additional information be called for and vide State Government letter dated 8-12-1989 the same was asked for. In the meanwhile case was further examined and number of copies of supporting material were typed which was quite a voluminous job, which consumed sufficiently long time. The proposal was re-examined in the light of the clarifications received from Customs office on 25-1-1990 and case was sent to State Law Department, where it remained under examination on 1-2-1990 and 2-2-1990. Thereafter, the proposal was examined in the light of the advice of the State Law Department. Ultimately, the proposal was put up before the competent authority who, with due application of mind, ordered the detention of the petitioner on 20-2-1990 and formal order was issued on 21-2-1990. During the processing of the case at the State Level, 2/12, 3/12, 16/12, 17/12, 23/12, 24/12, 25/12, 30/12 and 31/12/89, 3/1. 6/1, 7/1, 13/1, 14/1, 20/1, 21/1, 26/1, 28/1/1990, 3/2, 4/2, 9/2, 10/2, 11/2, 17/2 and 18-2-1990 were holidays. Besides, the petitioner was arrested on 26-9-1989, and was released on 17-10-1989. Therefore, during this period, the petitioner was sufficiently prevented from indulging in any prejudicial activity. It was only after his release on 17-10-1989 that it was felt necessary to detain the petitioner. Thus, from 17-10-1989 to 21-2-1990, the nexus between the activities indulged in by the petitioner remained alive and even otherwise, the detaining authority was subjectively satisfied that the petitioner was likely even in future to indulge in similar prejudicial activities and, therefore, it was felt necessary to detain him.
From the submission made above, it is clear that the case was processed with promtitude at all the stages and the time taken in passing the detention order is reasonable and has been adequately explained. There is a close nexus between the prejudicial activities indulged in by the petitioner and the passing of the detention order as the case remained under active processing during this period."
7. A bare perusal of the above referred explanation reveals that the sponsoring authority had forwarded the case to the State Government on 28-11-1989. Thus it could not be said that the sponsoring authority has taken unreasonable time, in forwarding the proposal for detention to the State Government, especially when para 4 of the return reveals that Pappu and Bhupinder Singh, other companions of the detenu failed to turn up before the sponsoring authority despite issuing of summons repeatedly. The proposal was received in the office of detaining authority on 30-11-1989. It was examined by the Legal Agency on Ist, 4th and 6th of December, 1989 and some additional information was required which was called for vide letter dated 8-12-1989. The said information was received on 25-1-1990 and the case was again got processed from the State Law Department on 1st and 2nd of February, 1990. Ultimately, the proposal was put up before the competent authority who passed the order on 21-2-1990 after due application of mind. During this invervening period, there were 26 holidays. It is also maintained that the necessity to pass the detention order arose after the detenu was released on bail on 17-10-1989 by the criminal court. Thus, in all about four months time was taken by the sponsoring authority and detaining authority in passing the detention order after the release of the detenu on bail, i.e. after 17-10-1989. Under the circumstances of the case discussed above, it cannot be said that the detention order was passed with undue delay and that it has resulted in snapping the nexus between the last prejudicial activity dated 26-9-1989 and passing of the order of detention.
8. The question then arises whether the non-indulgence of the petitioner in any prejudicial activity during the period from 17-10-1989 to 19-3-1990 while he remained on bail, would justify to conclude that he has no future propensity to injulge in similar activity. In this regard, learned counsel for the petitioner had relied upon two judgments of this court in Bhupinder Singh v. Union of India 1989 (2) All Cri LR 344 and Gurdev Singh v. State of Punjab, 1988 (1) R.C.R. 521. I fail to find any force in this contention because in Bhupinder Singh's case (supra) he was found carrying some articles including a gold kara (bracelet). He had not concealed the gold or other contraband articles in a surreptitious manner like in rectum in the present case. Thus, that was the ordinary case of carrying contraband articles. Similarly in Gurdev Singh's case (supra) the allegations against the detenu were that he indulged in harbouring terrorists but during the period of three months he remained on bail, he had not indulged in such activity. Thus on facts, both these above referred decisions of this court are not applicable to the case in hand. The future propensity of the detenu to indulge in similar activities is well apparent from the very factum that he had indulged in smuggling gold from Afghanistan to India after concealing it in his rectum in order to escape detection. As a matter of fact, Amarjit Singh brother of the petitioner has managed to smuggle gold along with the petitioner in such like manner. Thus, the mere fact that the petitioner did not indulge in such activity during the period he remained on bail is of no consequence.
9. The delay of 26 days in execution of the detention order is self-explanatory as normally such time is taken in execution of the same. The detention order was passed on 21-2-1990 and it was served upon the detenu on 19-3-1990. The law enforcing authorities being busy in prevalent extraordinary law & order situation in the State, it cannot be said that the delay was inordinate or that the detaining authority was not serious in detaining the petitioner. The decision of the Apex Court in Shafiq Ahmed v. District Magistrate, Meerut, 1989 (2) Rec CR 622 : (1990 Cri LJ 573) to the effect that as no attempt was made to arrest the detenu for 1 1/2 months under Section 3(2) of the National Security Act, 1980 it reflects upon the genuine apprehension on the part of the detaining authority is not attracted to the facts of the case in hand, because in the present case the authorities had resorted to apprehending the detenu from the very day the order of detention was passed i.e. from 21-2-1990 and the petitioner was apprehended on 19-3-1990 i.e. four days less than one month.
10. Regarding the objection of the petitioner that he has been discriminated in the matter of placing under detention and that no action was taken against the real king-pins namely Pappu and Bhupinder Singh who had induced the petitioner to work as carrier for smuggling gold from Afghanistan, it transpires from para No. 4 of the return that these persons had failed to, appear before the Customs authorities despite issuing of summons from time to time. Moreover, the petitioner having been caught red handed while smuggling gold to India from Afghanistan in a surreptitious manner, there appears to be no justification in delaying the passing of order of detention against the petitioner simply on the ground that his other companions in this very case were evading the course of justice and had resorted to absconding. The Apex Court in Yogendra Murari v. State of U. P., AIR 1988 SC 1835 : (1988 Cri LJ 1825) had also dealt with similar controversy in para 9 of the judgment as under at page 1828 (of Cri LJ) :
There is no merit whatsoever in the petitioner's grievance of discrimination on the ground that the other co-accused persons have not been detained. The role of the petitioner and that of the others are not identical and the reasonable apprehension as to their future conduct must depend on the relevant facts and circumstances which differ from individual to individual. It would have been wrong on the part of the detaining authority to take a uniform decision in this regard only on the ground that the persons concerned are all joined together as accused in a criminal ease.
Thus under these circumstances there appears to be no force in this contention.
11. Lastly, the learned counsel for the petitioner contended that as the passport of the detenu was taken in possession and impounded at the time of his arrest by the Customs authorities, there was no likelihood of his going abroad and indulging in the smuggling of gold, and that the detaining authority had not applied its mind to this aspect of the matter. This objection is taken in para 13-A of the writ petition. In corresponding para 13-A of the return, the respondent has simply averred that each and every document of the criminal case is not required to be placed before the detaining authority and that the documents placed before the detaining authority were sufficient for the bona fide and subjective satisfaction, which in turn implies that this aspect of the matter was not placed before the detaining authority. Faced with this difficulty, Mr. Saron, learned Assistant Advocate General, Punjab contended that the propensity of the petitioner for smuggling gold within the country cannot be ruled, out, but this argument is not tenable because the petitioner is being detained on the basis of his future propensity to indulge in smuggling gold from outside the country. The decision of the Delhi High Court in Shri Poplawski v. Union of India, 1989 (2) Rec Cri Rep 437 can be safely referred to in this regard. In that case the detention order passed under Section 3(1) of the COFEPOSA Act, was held to be punitive and not preventive, as the seizing of passport of the petitioner was considered sufficient to prevent him from smuggling goods. Again the Full Bench of Delhi High Court in Mohd. Saleem v. Union of India, 1989 (2) Rec Cri R 256 : (AIR 1989 Delhi 340) has dealt with similar matter. In that case the factum of seizing the passport of the detenu was placed before the detaining authority and still an argument was built up that the possibility of the detenu going abroad on a forged passport or going to Nepal without such passport and indulging in smuggling goods cannot be ruled out. In para 37 of the judgment this argument was discarded by the Full Bench by holding that such propensity has not been mentioned in the grounds of detention or pleaded in the counter-affidavit filed by the respondent. The Full Bench then in paras Nos. 37 and 38 of the judgment observed as under :--
There can be no doubt that in a given case on awareness of such a ground, as is pleaded before us, requisite satisfaction formed in making the detention order with a view to preventing the detenu from smuggling goods Cannot be said to be vitiated. The duty of the court is to examine only whether the facts and material which influenced the mind of the detaining authority were communicated to the detenu. Necessarily, therefore, those facts and material on which the order is based have to find mention in the grounds of detention. As per the mandate of Article 22(5) of the Constitution the detenu must be informed of all the grounds of detention. A basic postulate of that provision is that the 'grounds' meaning all the basic facts and material, have to be communicated to the detenu. If in a case that mandate has not been complied with, the detention order is liable to be set aside.
A reasonable person's subjective satisfaction that a detenu whose passport has been seized is likely to travel abroad clandestinely to smuggle goods cannot be objectively examined, but whether the material on which such satisfaction has been arrived at was communicated to the detenu is open to judicial scrutiny. A detention made on undisclosed grounds to the detenu is not permissible.
12. A bare perusal of above referred observations of the Full Bench leaves no doubt that the detaining authority should have been made aware of the likelihood of the detenu travelling abroad clandestinely to smuggle goods. In the case in hand, the factum of seizing of the passport was not placed before the detaining authority. Thus, it appears to be a clear case of non-application of mind by the detaining authority to this aspect of the matter, and this defect alone is sufficient to render his detention as punitive.
13. Consequently, the order of detention of the petitioner is hereby quashed on the last ground alone by accepting this writ petition. The detenu be released forthwith, if not required in any other case.