Anil Nayar vs State of Punjab and others

N.C. Khichi, J.—The present writ petition has been filed by Anil Nayar petitioner under Article 226 of the Constitution of India for quashing the detention order No. 5/17/94-2-H III (PITNDPS) 1580, dated 13.10.1995, copy Annexure P.I, passed by the Deputy Secretary Home, Government of Punjab, Department of Home Affairs and Justice, againsl the petitioner, u/s 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (Central Act No. 46 of 1988) with a view to preven! the petitioner from indulging in the smuggling and selling of the Narcotic Drugs.

This writ petition was allowed on 8.11.1996 for the reasons to be recorded later on.

Brief facts leading to the passing of the impugned Detention order are that on March 6,1995 the Income Tax Department Officers during search of the house of the petitioner recovered some material in form of powder which looked like Narcotics and they conveyed the information on telephone to the Assistance Collector Central Excise, Division Ropar. On receiving this information a team of Central Excise Officers reached at the said premises and the material recovered was presented to them by the Income Tax Authorities, who examined the same after conducting necessary test, which showed the presence of Narcotic Drugs in this material. The contraband material comprising of brown form marked (1 A) and (IB) white material in powder form and dark brown material was weighed in the presence of Om Parkash and Arvind Kumar panches. The sample and the remaining material was packed in polythene pouches and wrapped in white cloth with the seal of the Deputy Collector, Amritsar. The seizure was effected under the Panchnama on the spot in the presence of petitioner and the Central Excise Officers. The petitioner in his statement recorded on 6.3.1995 admitted the recovery of the abovesaid contraband. Thereafter, he was arrested and brought to Central Excise Division office at Ropar. On March 7, 1995, the petitioner admitted that this material was dangerous drugs and the same was supplied to him by one Harbans Lal resident of Sirhind in 1986 who was running his business at Nangal. On March 7, 1995, the petitioner was produced before the CJM, Ropar who remanded him to judicial custody.

Report of the Chemical Examiner was sought and as the report dated 15.3.1995, it was not clear whether the material recovered was prohibited drug/contraband or not. Hence a clarification was sought from Central Revenue Control Laboratory, New Delhi because the report which was produced earlier on 21.3.1995 was not clear. On 10.4.1995 Central Revenue Control Laboratory, New Delhi clarified that the material does not fall under Narcotic Drugs and Psychotropic Substances Act. In the meantime on 21.3.1995 second sample was sent to C.F.S.L.. Chandigarh and the said laboratory gave report holding the material to be heroin. Thus the sample was sent for examination while the petitioner was behind bars.

It is further the case of the petitioner that on the basis of the first report, learned Additional Sessions Judge, Rup Nagar had granted bail to the petitioner on 21.3.1995 with a rider that if the report of the CFSL, Chandigarh would be positive the Department was at liberty to move for the cancellation of bail of the petitioner. On this pretext, the cancellation of bail was sought and on 29.4.1995 the bail of the petitioner was cancelled and he was again taken into custody. The petitioner approached the High Court for bail, but his request was declined on 20.10.1995. Ultimately after considering the facts and circumstances of the case Hon''ble Supreme Court granted bail to the petitioner, but the petitioner was not released because during his judicial custody respondent authorities passed the order of detention, copy Annexure P.I. ''the petitioner has approached this Court assailing the validity of the detention order on various grounds.

In the counter affidavit the detaining authority maintained that the detention order was passed after completing office formalities which took a long time of 9 months. That the detent ion order was passed by the detaining authority after full application of mind and the order was passed legally by the authority after subjective satisfaction and examining the facts and circumstances of the case. With regard to the delay of 9 months in passing the detention order it is stated that the chemical analysis report was received from the Central Revenue Control Authority, on 21.3.1995 which showed that the seized material does no! answer positive test for morphine, diacetyl morphine, cocain, mathaquaione, amphetamines and barvitu-rates (barbiturates ?). Since the report was not clear so the second sample was sent to the CFSL, Chandigarh for tests and the report was received on 14.4.1995, which confirmed that 500 gms material out of 1500 gms seized is heroin. With regard to delay it was stated that it was caused in the process and thus it was pleaded that the order copy Annexure P.I was valid.

I have heard the learned counsel for the parties and have gone through the material on record.

Learned counsel for the petitioner has argued that the detention order is a result of mala fides and the order is bad in the eye of law as the respondents have not been in a position to explain the delay of 9 months in passing the order from the date of prejudicial act. Therefore, quashment of the order Annexure P. 1 is sought as it is contrary to law as defined u/s 3(3) of the Prevention of Illicit Traffic inNDPS Act, 1988.

Mr. Ramandeep Singh and Mr. D.D. Sharma, learned counsel for the respondents has opposed this contention raised by the petitioner and have contended that the delay is not intentional in service of the detention order upon the petitioner.

In my view the facts and circumstances show that through the first sample which has sent for chemical examination did not find any narcotic substance and the second sample which was sent to CFSL. Chandigarh showed the presence of heroin is result of mala fides as the second sample which was sent for chemical examination was neither taken in the presence of petitioner nor any application was moved before the competent Court by the respondent for sending the same for chemical examination. This aspect of the matter cannot be ignored as this sole act of the respondents has caused great prejudice to the petitioner.

It is further contended by the learned counsel for the petitioner that as per the law laid down by Hon''ble Supreme Court in catenna of judgments that the detention order should not be punitive but it should be preventive. It has been brought to the notice of the Court that though the detention order was passed on 13.10.1995 but the same was served on the petitioner on 21.11.1995 i.e. after a delay of 37 days. Learned counsel for the petitioner contended that the respondents'' act was vindicative in nature because after the petitioner was allowed bail by the learned Additional Sessions Judge, the respondents again moved for the cancellation of bail. Secondly the petitioner moved for bail before this Court and on the refusal he approached the Hon''ble Supreme Court. Hon''ble Apex Court was pleased to grant bail to the petitioner but in order to keep the petitioner behind the bars the detention order was passed in the mean time.

This contention of the learned counsel for the petitioner is convincing and 1 am of the opinion that the acts and conduct of the respondents seem to be vindictive and mala fide and the detention order has been passed as a punitive measure against the petitioner.

The learned counsel for the petitioner has also challenged the validity of the second report of the CFSL and has vehemently argued that since the respondents had been wreaking personal vengeance against the petitioner it cannot be taken that the second report was valid. 1 find force in the contention of the learned counsel for the petitioner. The facts and the circumstances of the case clearly show that the second sample was sent for examination, while the petitioner was in custody and the legal procedure was given total go-bye by the respondents in sending the sample for chemical examination. Thus the second report makes of mala fides on the face of it.

Learned counsel for the petitioner has conlended that on the date of the detention order, the petitioner was already in custody which means that the respondents were bent upon to put the petitioner behind the bars in spite of bai I orders passed by the Hon''ble Supreme Court of India.

Learned counsel for the respondents have also tried to show the issuance of the detention order, copy Annexure P. 1 as valid and have tried to convince the Court that the detention order has been passed after due satisfaction and proper application of mind by the competent authorities. It is further contended by the learned counsel for the respondents that the delay is not intentional but has been caused in the process. I do not find force and substance in the arguments raised by the learned counsel for the respondents, as the facts and the circumstances of the case clearly show that the delay in passing the detention order is intentional and the solitary incident, with regard to which the detention order copy Annexure P.I has been passed. It is not out of the subjective satisfaction of the authorities especially in view of the fact that the second sample was not sent in accordance with law.

From the material placed before me I find that there is non-application of mind by the authorities making detention order and the same appears to have been made just in a mechanical manner. As already discussed said order has been passed when the petitioner was already in custody and the respondents have utterly failed to show that in which manner is apprehends the petitioner''s involvement in the prejudicial activities because the petitioner was already in custody and he could not have indulged in prejudicial activities.

On the strength of the aforesaid premises, I am satisfied that the detention order, copy Annexure F.I passed by the respondent is bad in the eye of law and the same is liable to be set aside. Consequently, this petition succeeds and the same is hereby accepted. The detention order, copy Annexure P. 1 is hereby quashed. No order as to costs

Petition allowed.