Ajaib Singh vs Union of India

G.S. Chahal, J.

Ajaib Singhpetitioner has come to this Court in this petition under Articles 226/227 of the Constitution of India and seeks quashing of order dated August 19, 1988 passed by Administrator, Union Territory, Delhi, under Section 3(1) of COFEPOSA Act, 1974. This order is claimed to be illegal. Since the same has not so far been served on the petitioner it is prayed that a direction be issued restraining the authorities from arresting him.

The petitioner claims that he is a permanent resident of village Libra, Distt. Ludhiana, within the jurisdiction of this Court. The Custom Officials raided his premises on 25th May 1988 and 2nd June 1988 at his village but nothing incriminating was recovered; that the petitioner has been involved falsely for ulterior motives; that on 23.4.1988, the police officers of Babugarh Police Station, District Ghaziabad, (U.P.) at the UPDelhi Border intercepted two trucks bearing Nos. HYO 7141 and HYQ 2297. These trucks were found to be carrying polyester synthetic yarn allegedly of foreign origin. On the basis of the information sent by the police, the D.R.I. officers reached at the spot and took custody of the trucks and the yarn. The trucks were taken by the D.R.I. to their office in Delhi where the trucks were searched and a Panchnama was drawn. The Panchnama showed the seizure of documents which are as under :

(i) Registration books of both the trucks. The registration book of truck No. HYO 7141 showed that it was owned by Shri Karamjit Singh s/o Shri Hukum Singh r/o H.No. 155, New Colony, Palwal, Haryana and the registration book of truck No. HYQ 2297 showed that the owner was Shri Gurmeet Singh s/o Shri Hardian Singh r/o Mohan Nagar, Kurukshetra, Haryana.

(ii) One bilty No. 576 dated 21.4.1988 issued by Yadav Roadlines, Gorakhpur showing the name of the consignee as M/s Radharam Sitaram, Rohtak, Haryana.

(iii) Bilty No. 361 dated 21.4.1988 issued by M/s. Har Bhagwan Dass & Sons, Gorakhpur showing the consignee''s name as M/s Radharam Sitaram, Rohtak.

(iv) Challan No. 196 dated 21.4.1988 issued by Yadav Roadlines, Gorakhpur.

(v) Driving licence of driver Kulwant Singh who was arrested in this case from truck No. HYO 7141.

(vi) Photocopy of memo dated 5.10.1987 issued by the Vacation Judge, Coochbehar in Criminal case No. 338/87 Angrez Singh and Gurdian Singh v. State

(vii) Photocopy of order by Sessions Judge for release of Prisoner on bail in criminal case No. 338/87 in the Court of Vacation Judge, Coochbehar.

That these documents clearly showed that neither the trucks were not owned by the petitioner he was neither the consignor of the goods nor the consignee nor there was any paper to connect the trucks or the goods with the petitioner or with M/s Patiala Transport Company to which the petitioner was a partner, that the D.R.I. did not make any investigation from the owners of the trucks or the consignors and consignees whose addresses have become known to them; that Sarv Shri Shiv Ram Sharma, Manager, Patiala Transport Company and Nihal Singh, driver of the petitioner were summoned to Babugarh Police Station on the pretext that some truck of Patiala Transport Company had been detained at the U.P. Delhi border for some traffic violations. Both of them along with Kulwant Singh driver of truck No. HYO 7141 and Baldeep Singh who was an outsider but had taken lift in truck No. HYQ 2297 were taken to the office at Lodhi Road Complex and they were detained overnight and their confessional statements were extorted under all types of mental and physical tortures. Kulwant Singh, Shiv Ram Sharma and Nihal Singh were made to say that the seized trucks were attached to Patiala Transport Company. Kulwant Singh was arrested and produced before Additional Chief Metropolitan Magistrate, New Delhi on 24.4.1988 where he retracted his confessional statement. A copy of the retraction petition is Annexure P1. The D.R.I. knew that the seized trucks have nothing to do with the Patiala Transport Company and made absolutely no investigations at the office of the said Company to look into the records so as to connect the trucks with the company. They wanted to make out a false case on the basis of the statement of Kulwant Singh who was an uneducated person and a young boy of less than 18 years. The D.R.I. officers took the petitioner to their office where he was manhandled and physically assaulted and was forced to write a statement as dictated by those officers. He was neither allowed to inform his relatives nor allowed to call a doctor though he was an old man suffering from various ailments. The petitioner was produced before the Addl. Chief Metropolitan Magistrate, New Delhi, where he retracted his confessional statement while moving a bail application. That on the basis of the alleged confessional statement COFEPOSA detention was proposed against six persons including the petitioner. Apprehending his detention under the COFEPOSA the petitioner moved the Calcutta High Court and that Court was pleased to grant a stay order on 19th August 1988. That since the petitioner has been unable to attend that Court on account of his old age and sickness, he has withdrawn that petition.

The order of detention has been challenged on the basis (a) that the detention order of Kulwant Singh driver had been revoked by the Delhi Administration on the basis of advice of COFEPOSA Advisory Board. The copy of the revocation order is Annexure P2. The detention of Bhavensh Kumar alias Pappu who was alleged to be a joint owner of the synthetic yarn was revoked by the Delhi Administration after reconsidering his case and a copy of the order is Annexure P3. The detention order of Ramesh Kumar was quashed by the Delhi High Court and in view of these revocations of detention orders of Kulwant Singh and Bhavenesh Kumar and the quashing of the order against Ramesh Kumar, the order passed against the petitioner was discriminatory and has been passed in order to harass and humiliate him (b) the alleged prejudicial activity is dated 23.4.1988 and the order of detention was passed on 19th August 1988 and there was no explanation for the delay in passing of the order and there was no nexus between the alleged prejudicial activity and the order of detention; that petitioner had been allowed bail in May 1988 and there is no allegation that while on bail he indulged in any prejudicial activity (c) that there was no allegation of any prejudicial activity on the part of the petitioner at any earlier stage and it was a case of single prejudicial activity and the order was not justified (d) Kulwant Singh had retracted from his statement and that statement was a vital document which has not been taken into consideration by the detaining authority. Had this document been taken into consideration, the authority would not have passed the detaining order; (e) there was no evidence to connect the trucks with the petitioner; (f) there was no evidence to show that the seized Synthetic Yarn was in fact of foreign origin; (g) that since the alleged incident is now more than 5 years old and the petitioner is an old and sick person leading a retired life, no purpose contemplated by COFEPOSA can be served by detaining the petitioner.

The petitioner also claims the detention order to be one as punitive measure rather than a preventive measure.

In the return, the maintainability of the petition has been challenged on the basis of the observations made by their Lordships of Supreme Court in Alka Subhash Gadia and others reported in 1991(1) S.C.C. 549 and also State of Tamil Nadu v. P.K. Shamsuddin, (II) 1992 CCB239 (SC). The petitioner had previously filed two petitions bearing Nos. CO No. 14477(W) of 1992 before the Calcutta High Court. Both these petitions had been dismissed and a copy of the order dismissing the later petition is Annexure R1; that the petitioner has now shown himself as permanent resident of Village Libra, Distt. Ludhiana in order to invoke the jurisdiction of this Court while filing Co. No. 9539 (W) of 1988. He had shown himself as resident of PortBlair and while filing Co.No. 14477(W)/1992, he had claimed to be a resident of Calcutta; that all acts challenged in the writ petition had taken place in the city of Delhi and the authorities against whom the principal relief has been sought to reside outside the territorial jurisdiction of this Court; that the writ petition involves disputed questions of facts which cannot be adjudicated upon in the high prerogative writ jurisdiction of this Hon''ble Court. The fact that the petitioner had been falsely implicated was denied and it was further pleaded that the petitioner had himself admitted his connections with the trucks and the smuggled goods and his statement finds corroboration from the other statements. The fact of detaining of other persons and getting their statements under torture were denied. All the grounds on the basis of which the petitioner sought to challenge the order of detention were also denied.

The main objection raised by Mr. D.D. Sharma, learned counsel for the respondent to challenge the validity of this petition is that the petitioner was not entitled to get the order quashed at preexecution stage. He relies in support of his arguments on the observations of their Lordships of Supreme Court in Government of India and others v. Smt. Alka Subhash Gadia and another, 1991(1) Recent Criminal Reports 677 : JT 1991(1) SCC 549 . I am however, unable to support the arguments of learned counsel that this judgment lays a complete bar on the power of this Court to entertain a petition at preexecution stage and to grant a relief in a proper case. To support my view, I may reproduce the following observations :

"... Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the preexecution stage are necessarily very limited in scope and number, viz., where the Courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so."

Their Lordships further observed that the Courts have power to interfere with the detention order even at the preexecution stage but they are not obliged to do so nor will it be proper for them to do so save in exceptional cases. A detenu cannot claim exercise of power of the Court and that discretion has to be exercised judicially on well settled principles.

The case of the petitioner has, thus, to be examined in the light of the guidelines laid down in the abovequoted judgment but it cannot be said that the Court has no jurisdiction to entertain the writ petition at the pre execution stage.

A salient feature of this petition which distinguishes it from other cases where order of detention is sought to be quashed at preexecution stage is the revocation of the orders of codetenus. The detention order of Driver Kulwant Singh was revoked by the Delhi Administration on the advice of the COFEPOSA Advisory Board vide Annexure P2. The detention order of Bhuvnesh Kumar @ Pappu who was alleged to be the joint owner of the Synthetic Yarn was revoked by the Delhi Administration vide order Annexure P3 and the detention order of Ramesh Kumar Wadhera was quashed by the Delhi High Court in Cr.W. 347 of 1989 decided on December 18, 1989. The petitioner is, thus, justified in stating that he has a cause to be considered at the preexecution stage.

Another preliminary objection raised by Mr. D.D. Sharma, learned counsel for UOI is the want of jurisdiction of this Court. The petitioner has claimed that he is a permanent resident of village Libra, District Ludhiana within the jurisdiction of this Court and the Customs Officials raided his premises on May 25, 1988 and June 2, 1988, but nothing incriminating had been recovered. That in the statements made by him before the DRI he has given his permanent address of this place. In the return, these facts have not been controverted. It is, however, stated that the petitioner had filed two writ petitions before the Calcutta High Court and in one of them he has given his address of Port Blair and in the second of Calcutta. It is not disputed that these writs were not decided on merits. The order of detention was, thus, not reviewed in those proceedings. Since the petitioner at that stage had his residence in the jurisdiction of that High Court, he had moved that Court. The petitioner is stated to be a transporter and presumably he had been shifting his place of residence to various places in connection with his business and since his liberty was threatened, he sought relief from the Court within whose jurisdiction he was staying at that particular time. Since it is stated and which fact has not been controverted that the Customs Officials have carried out raids at village Libra at the premises of the petitioner, a part of cause of action did arise within the jurisdiction of this Court. The petitioner at the earlier stage had given his address of village Libra in his statement made before the DRI. It cannot, thus, be said that he is attempting to the create a jurisdiction in this Court by making a reference to the place of his permanent residence. I, thus, do not find force in the contention of the learned counsel for UOI that this Court has no jurisdiction to entertain the petition.

Mr. R.S. Ghai, Senior Advocate for the petitioner has urged that it was a case where single prejudicial activity is complained of and there is no allegation of any past history of the petitioner indulging in any prejudicial activity and it was a case of nonexistent grounds. Kulwant Singh had retracted from his statement and a copy of the application has been placed as Annexure P1. Not only that this document was not considered, there was no evidence that the yarn which is stated to have been brought in the trucks was in fact of foreign origin and regarding which it could be said that it was subject of smuggling. With respect to the pleas taken by the petitioner on these two aspects, the respondent has made the following averments :

"16(e) The alleged retraction of the statement by Kulwant Singh, by way of an application moved by an advocate, without the signatures of Kulwant Singh and that too after considerable time, is also of no consequence and help to the petitioner. It is denied that vital documents were not considered by the detaining authority. It is reiterated that all the vital documents were considered.

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g) With reference to ground No. (g) it is denied that there is nothing to show that the seized synthetic yarn was of foreign origin. The seized synthetic yarn and the statements are sufficient to prove the smuggled character of the goods."

It is true that this Court will ordinarily not examine and assess the evidence on the basis of which the subjective satisfaction is formed by the detaining authority, but there must be material before the detaining authority to pass an order and it also must consider all relevant documents to form an opinion. If the material documents are not considered or the subjective satisfaction is based on no evidence, the petitioner has a right to claim that the detention order has been passed for extraneous reasons as a punitive measure and not as a preventive measure. I accept the argument of the learned counsel on these aspects.

Coupled with the above facts, there is the matter of delay in passing of the detention order. The prejudicial activity is dated April 23, 1988 and the order of detention was passed on August 19, 1988. In the return, no facts have been stated as to the dates on which the proposal for detention order was initiated and as to how the process of detention was carried out. In view of this unexplained delay, the petitioner has a right to claim that the nexus between the prejudicial activity and the detention order had been snapped and that the delay reflects upon the bona fides of the subjective satisfaction of the detaining authority.

In Jagan Nath Biswas v. The State of West Bengal, AIR 1975 SC 1516, the order of detention relating to a prejudicial activity dated August 25, 1972 was passed by the authorities on February 27, 1973. Dealing with the controversy, their Lordships made the follows observations :

"The incidents themselves look rather serious but also stale having regard to the long gap between the occurrence and the order of detention. One should have expected some proximity in time to provide a rational nexus between the incidents relied on and the satisfaction arrived at. This Court has repeatedly pointed out that unexplained and long delay will be fatal to the plea of subjective satisfaction. In the present case, counsel for the State Sh. G.S. Chetterjee took time to furnish an explanation as to why there was such a long delay for the District Magistrate to pass the order of detention. Unfortunately, we are no wiser today than at the previous hearing. In short, we are not taken into confidence by the District Magistrate as to why there should have been such an inordinate delay. We, in turn, therefore, are not satisfied about the "bona fides of the subjective satisfaction of the District Magistrate."

In Sk. Serajul v. State of West Bengal, AIR 1975 SC 1517, their Lordships observed that undue delay in passing of the detention order and in the actual arrest thereafter reflects adversely upon the genuineness of the subjective satisfaction of the detaining authority.

Again a similar controversy came up for scrutiny before the Hon''ble Supreme Court in Anand Parkash v. State of U.P. and others, 1990(1) RCR 241 and their Lordships observed as follows :

"The learned counsel also contended that there is an unexplained delay which makes the ground of detention not proximate vitiating the order of detention itself. The theft of the wire was on 14.2.1989 and the FIR was registered on 15.2.1989. On that day itself as seen from the record, Jagdish, Santosh and Munshi Sharma, were shown as accused on the basis of some information. The house of Jagdish was raided on 3.3.1989 and on the same day the factory of the detenu was raided and 20 kg of melted wire recovered from Munshi Sharma but no action was taken till 2.5.1989 against the detenu. On being arrested on 2.5.1989 the detenu moved a bail application and the detention order itself was made on 3.5.1989. Though bail was granted, in view of the detention order he could not be released from jail. In spite of the fact that the recovery statement itself was made as early as on 3.3.1989 no action was taken till 3.5.1989. Nothing more is stated in the detention order. The delay has also not been satisfactorily explained in the counter statement of the respondents. The ground instance, therefore, could not be a proximate cause for a sudden decision to take action under the National Security Act and this also vitiates the order."

In Bhupinder Singh v. Union of India, 1989(2) All India Criminal Law Reporter 344, Bajaj, J. quashed the detention order where there was no material on record to show that the detenus indulged in any prejudicial activity while on bail.

In view of the discussion made above, I allow the petition and quash the impugned detention order and restrain the respondents from executing that order against the petitioner.

This petition stands disposed of.