Anoop Singh vs The Secretary to Government of Punjab and Others

V.K. Jhanji, J.—The present petition under Article 226 of the Constitution of India, has been filed for issuance of a writ in the nature of certiorari for quashing detention order No. 1/16/94-3HIII-(COFEPOSA)/278 dated 11.2.1994 (Annexure P-1) and grounds of detention dated 11.2.1994 passed by respondent No. 1 against the petitioner.

In brief, the facts as stated in the petition are that the petitioner, who is resident of village Varpal, District Amritsar, was arrested on 22.8.1993 u/s 104(1) of the Customs Act, 1962 (in short, the Act) by the Customs Authorities. While the petitioner was in judicial custody, he was served with the following detention order along with grounds of detention:--

GOVERNMENT OF PUNJAB DEPARTMENT OF HOME AFFAIRS AND JUSTICE (HOME-III BRANCH) ORDER

No.: 1/16/94-3HIII (COFEPOSA)/278 Dated 11.2.1994

Whereas the Governor of Punjab is satisfied that you Anoop Singh s/o Shri Ghulla Singh, R/o Village and Post Office Varpal, Distt. Amritsar, Police Station Jandiala, have been engaging in transporting and concealing smuggled goods and, therefore, it is necessary to make an order directing that you (Anoop Singh) be detained with a view to preventing you from indulging in the abovementioned prejudicial activities, in future.

(2) Now, therefore, in exercise of the powers conferred by Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Parliament Act No. 52 of 1974). The Governor of Punjab while being conscious of the fact that you are in judicial custody is pleased to direct that you Anoop Singh be detained.

(3) You have a right to make representation in writing against the order under which you are being detained. If you wish to make such representation, you should address it to the State Government through the Superintendent of Jail as soon as possible.

Sd/- Deputy Secretary (Home),

To

Anoop Singh S/o Sh. Ghulla Singh, R/o Village and Post Office Varpal, Distt. Amritsar, Police Station: Jandiala.

The detention order and the grounds of detention are being impugned in this petition, mainly on three grounds, namely:--

(1) That the events mentioned in the grounds of detention dated back as 22.8.1993 and the order of detention is dated 11.2.1994, i.e., six months after the event mentioned in the grounds of detention, and therefore detention order is liable to be quashed;

(2) That the detaining Authority has not applied its mind while framing the grounds of detention, but had copied them from the grounds taken in the dossier prepared by the Customs Authorities; and

(3) That the petitioner, after detention, submitted a representation to the detaining Authority through the Superintendent, Central Jail, Amritsar, for the revocation of the detention, and the representation was addressed to the detaining Authority and it was requested in the end of the representation that a copy of the representation be forwarded to the Central Government, i.e., respondent No. 3, but it has not decided the said representation, nor has conveyed any decision on the representation forwarded by the petitioner.

Notice of the petition was given to the respondents. Respondents No. 1 and 2 have filed written statements, whereas respondent No. 3 has filed a counter-affidavit. In the written statement and the counter-affidavit, the respondents have denied the averments made in the petition and stated that the detention orders are not liable to be quashed on any of the grounds mentioned in the petition. Respondent No. 1 in the written statement has given the details and the dates during which proceedings of the detention proposal were processed and order ultimately was passed after consideration of material on record. Respondents have further denied that the detention order suffers from non-application of mind. As regards ground No. 3, respondent No. 1 in the written statement has admitted that the petitioner submitted a representation through the Superintendent, Central Jail, Amritsar, which was addressed to the detaining Authority and it was requested in the end of the representation that a copy of the same be forwarded to the Central Government. In this very affidavit/written statement, respondent No. 1 has further admitted that the detaining Authority forwarded the copy of representation to the Central Government, whereas in the counter affidavit filed on behalf of Union of India (respondent No. 3), it has been stated that no representation whatsoever from or on behalf of the detenu was received in the COFEPOSA unit of the Ministry and hence, question of considering the same does not arise. The Superintendent, Central Jail, Amritsar, in his written statement has slated that the representation of the petitioner was forwarded promptly to the State Government for consideration.

When the matter initially came up for hearing on 14.7.1994, finding contradiction in the written statement filed by the respondents with regard to forwarding of representation of the petitioner to the Central Government, a direction was issued to the concerned respondents to file an additional affidavit for clarifying as to when and how the representation was sent to the Central Government and who received the representation on behalf of the Central Government. In pursuance of order dated 14.7.1994, Ms. Amrita Atwal, Deputy Secretary, Home, Punjab, Department of Home Affairs and Justice, Chandigarh, has filed an affidavit dated 25.7.1994, in which it has been stated that it was wrongly mentioned in the original written statement that representation was forwarded to the Central Government, whereas the same has not been forwarded. She has further stated that "the word ''not'' in between words has and forwarded was inadvertently missed during typing and there was no intention on the part of the answering respondent for mis-statement. Omission is deeply regretted". In view of this additional affidavit, it now stands admitted by respondent No. 1 that representation was received in which a request was received from the petitioner that copy of his representation be forwarded to the Central Government, but the same has not been forwarded to the Central Government.

Learned Counsel for the petitioner has contended that order of detention is liable to be quashed on all grounds taken in the petition. Mainly, he relied upon the third argument and in support of the same, he has placed reliance upon a judgment of the Supreme Court in Rattan Singh and Anr. v. State of Punjab and Ors. AIR 1982 SC 1.

Mr. Bhanot, counsel for the State, has contended that no prejudice has been caused to the petitioner as his representation was considered by the State Government and on consideration, the same was rejected and, therefore, it is of no consequence that representation which was given by the petitioner for being forwarded to the Central Government, was not forwarded. According to him, even if one Government has considered the representation, that is sufficient requirement of law.

Having heard learned Counsel for the parties at length, I am of the view that the present petition deserves to succeed. It is not necessary to go into the first two grounds as I am of the view that in the light of judgment of the Supreme Court in Rattan Singh''s case (supra), the detention order in question is liable to be quashed. The facts of this case are pari materia to the facts of Rattan Singh''s case (supra). The contention now raised by the counsel for the State stands answered in paras 3 and 4 of judgment in Rattan Singh''s case (supra). For the facility of reference, paras 3 and 4 of the said judgment are reproduced hereunder:--

In his counter-affidavit dated 29.7.1981, the Under Secretary to the Government of India, Ministry of Finance (Department of Revenue) (COFEPOSA Unit), New Delhi, says that ''no representation by or on behalf of the detenu relating to his detention has been received by the Central Government. As such, the question of any delay in the disposal of such a representation does not arise.'' In his affidavit dated 21.7.1981, the P.P.S. (I) Superintendent, Central Jail, Amritsar, says that the representation of the detenu Rattan Singh was forwarded to the Punjab Government. The affidavit of Smt. Shyama Mann, Joint Secretary to Government, Punjab, Home Department, Chandigarh shows that the representation of the detenu was considered by the Government of Punjab and was rejected on 28.4.1981.

There is no difficulty insofar as the representation to the Government of Punjab is concerned. But the unfortunate lapse on the part of the authorities is that they overlooked totally the representation made by the detenu to the Central Government. The representation to the State Government and the Central Government were made by the detenu simultaneously through the Jail Superintendent. The Superintendent should either have forwarded the representation separately to the Governments concerned or else he should have forwarded them to the State Government with a request for the onward transmission of the other representation to the Central Government. Some one tripped somewhere and the representation addressed to the Central Government was apparently never forwarded to it, with the inevitable result that the detenu has been unaccountably deprived of a valuable right to personal liberty. May be that the detenu is a smuggler whose tribe (and how their numbers increase ?) deserves no sympathy since its activities have paralysed the Indian Economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus. Section 11(1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part, either of the Jail Superintendent or the State Government to forward the detenu''s representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The continued detention of the detenu must therefore be held illegal and the detenu set free.

In the present case, the representation of the petitioner was considered by the State Government, and on consideration, was rejected, but the representation addressed to the Central Government, which was required to be forwarded either by the Superintendent Jail or by the State Government, was not forwarded, and that resulted in non-consideration of the representation by the Central Government. It is true that the power u/s 11 of COFEPOSA Act is supervisory and is exercisable on receipt of a petition or representation from the detenu for revocation of detention, and is exercisable both by the State Government or Central Government, notwithstanding that the order has been made by an officer of the State Government or Officer of the Central Government. It is a matter of discretion of the State Government or Central Government to revoke the detention order on receipt of such a representation, but non-forwarding of the representation certainly deprives the detenu of his valuable right for consideration of his representation by the Central Government. In the light of judgment of the Supreme Court in Rattan Singh''s case (supra), I have no alternative except to accept this petition. Consequently, this petition stands allowed and the detention order, Annexure P-1, dated 11.2.1994, is quashed. Accordingly, the detenu shall be set free forthwith.

Before concluding, I must record that the detention order is being quashed only because of lapse on the part of some official in the Home Department, Government of Punjab, Chandigarh, who failed to forward the representation to the Central Government. There is no material with this Court to go into the question or to give any finding as to whether lapse was deliberate or unintentional. It is, thus left open to the Chief Secretary to the Government of Punjab, Chandigarh, to make a thorough probe in the matter and fix responsibility on the person(s) who was/were responsible for not forwarding the representation to the Central Government, and in case it is found that the lapse was deliberate and intentional, then necessary action under the rules may be initiated against that person(s).

Copy of this order be immediately sent to the Chief Secretary to the Government of Punjab, Chandigarh, for compliance.