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Judgment
Jai Singh Sekhon, J.—Through this writ petition filed under Article 226 of the Constitution of India, the detenu seeks the quashment of the order of detention Annexure P-1 passed by the Government of Pubjab u/s 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as ''the Act'') with a view to preventing him from indulging in the smuggling and selling of narcotic drugs.
A brief resume of facts disclosed in the grounds of detention Annexure P1/A served upon the detenu is that in the fourth week of April, 1988, the detenu along with his old acquaintance Charanjit Singh contributed Rs. 10,000/- each for smuggling opium from Pakistan. Thereafter both of them crossed the international border and contacted one Bassi Musalman who delivered them 20 kilograms of opium against the payment of Rs. 20,000/-. This opium was sold by the detenu to Ajit Singh for Rs. 30,000/- and the profit of Rs. 10,000/- was equally shared by both of them. Again in the beginning of second week of May, 1988, both these persons procured 20 kilograms of opium from aforesaid Bassi Musalman, resident of village Burki in Pakistan and smuggled the same to India. The detenu then sold this opium again to Ajit Singh and earned profit of Rupees 10,000/-. Thereafter in the first week of June, 1988, both these persons again smuggled 20 kilograms of opium from Pakistan and the detenu sold the same to aforesaid Ajit Singh. The detenu was arrested on August 4, 1988, by the Police of police station Gharinda in case FIR No. 173 dated 3-8-1988 u/s 411/414 of the Indian Penal Code and u/s 25 of the Arms Act and Section 18 of the Narcotic Drugs and Psychotropic Substances Act etc. etc. The detenu is alleged to have made a confessional statement before the police on August 5, 1989 admitting that he was indulging in the smuggling of opium as referred above.
The detenu in this writ petition apart from other grounds has challenged the detention order on the ground of there being no proximity between the prejudicial activities indulged in by the detenu and passing of the detention order; on the ground of the non-application of mind by the detaining authority to the factum that the petitioner has already been released on bail before passing the detention order; on the ground of undue delay in disposing of the representation of the detenu and on the ground that the provisions of the above referred Act would not be applicable to the activities of the petitioner relating to the period when the provisions of this Act had not come into force.
In the counter-affidavit filed by the detaining authority, it is maintained that the detention order was passed after full application of mind to the activities attributed to the petitioner and taking into consideration that these prejudicial activities were corroborated by the statements of Sardul Singh, Roor Singh and Charanjit Singh, the co-associates of the petitioner, and that there is a close proximity between the last prejudicial activity of the detenu and the detention order. The prejudicial activity of the detenu came to light for the first time on 5-8-1988 and then after completion of the investigation of the criminal case registered vide FIR No. 173/1988, Police Station Gharinda. The sponsoring authority had sponsored the case for detention vide letter dated 13-3-1989. It is also maintained that thereafter the District Magistrate, Amritsar, obtained the opinion of the legal agency and passed the detention order. It was maintained that ,the representation of the detenu was promptly disposed of and that the provisions of the Act which came in force later on are well attracted to the prejudicial activities of the petitioner because the detention is to prevent the detenu from future indulgence in such like prejudicial activities.
I have heard the learned counsel for the parties besides perusing the record.
In the case in hand, the last prejudicial activity imputed to the detenu took place in the first week of June, 1988, but the same came to the notice of the police when the detenu was arrested on 4-8-1988 in a case registered vide FIR 173/1988 at Police Station Gharinda and he was interrogated by the police on 5-8-1988 wherein the detenu admitted all his past activities. The impugned detention order was passed on 16-6-1989. Thus there is a gap of more than 101/2 months when the police authorities learnt about the activities of the detenu in smuggling opium and the passing of the detention order. Thus there appears to be no proximity between the prejudicial activities of the detenu and the passing of the detention order. The detaining authority in para 7 of the counter affidavit has tried to explain this delay in passing the detention order as under:
"The contents of this para are admitted to the extent that the first prejudicial activity relates to the 4th week of April, 1988 and the last prejudicial activity relates to the first week of June, 1988 and that the detention order Annexure P-1 was passed on 16-6-1989 after a period of about twelve months from the last prejudicial activity. The contents of the remaining para are wrong and are denied. There is a close proximity between the last prejudicial activity and the detention order as the time taken in passing the detention order finds adequate explanation on the file and the case was processed with promptitude at all the stages. Besides, it is well settled that the test of proximity is a reasonable test and is not to be applied mechanically by counting the number of days and months from the prejudicial activities indulged in by the detenu and passing of detention order. In spite of time lag between the prejudicial activities and the detention order, if the case is processed with promptitude and expedition the nexus remains alive and it is to be judged from the facts and circumstances of each case without applying any hard and fast rule. In the present case, although the last prejudicial activity relates to first week of June, 1988, yet these activities came to light for the first time on 5-8-88 when the interrogation statement of the petitioner was recorded after arresting him on 4-8-88 in case FIR No. 173/88, P.S. Gharinda. Thereafter, efforts were made to arrest other co-associates of the petitioner who were playing hide and seek with the police. The investigation of the criminal case also continued which took time. After conducting the investigation, and interrogation of the co-associates which took many months, the entire material was linked and processed and minutely scrutinised in the office of the SSP/Amritsar, who thereafter moved the Distt. Magistrate, Amritsar vide his letter dated 13-3-89. The Distt. Magistrate, Amritsar after again examining the whole case sponsored the detention proposal to the State Govt. vide his letter dated 15-3-89. The detention proposal was examined at the State Hqrs. On 17-3-89 (18/3 and 19/3 were holidays) 20/3, 21/3 (22/3 to 26/3 were holidays) and 28/3 at various levels and it was decided to call for some additional information from the sponsoring authority and a letter dated 30-3-89 was issued to the sponsoring authority in this connection. The required additional information was supplied by the sponsoring authority vide letter dated 11-4-89 and the detention proposal again remained under active processing up to 25-4-89 and the tentative grounds were ordered to be prepared and copies of the supporting material were ordered to be typed which took time as it was quite a voluminous task and the concerned officials also remained busy in the type work of many other such proposals. The tentative grounds and the material were prepared and put up on 23-5-89 and were got checked and thereafter the case was sent to the State Law Department on 26-5-89. The State Law Department after examining the case gave its advice on 29-5-89. Thereafter the detention proposal was finally received in the office of the answering respondent where it was examined at various levels on 6-6-89 and 9-6-89 and put up before the comptent authority who passed the detention order on 12-6-89 after due consideration. Formal order of detention Annexure P-1 was issued by the answering respondent on 16-6-89. Thus, it is clear that the time taken in passing the detention order has been adequately explained as the case remained under active processing throughout this period. Besides, the Distt. authorities took their own time in processing the case as they were also busy in dealing with various law and order problems and tackling the menace of terrorism in the vulnerable border Distt. of Amritsar."
A bare glance through the above referred explanation reveals that the explanation of the detaining authority in explaining this gap of more than 101/2 months is neither here nor there because after the confessional statement of the detenu on 5-8-88 in the above referred case regarding his indulgence in smuggling of opium on three occasions from Pakistan, there was hardly any need for the sponsoring authority to have continued waiting for such a long time before sponsoring the move for his preventive detention on 13-3-1989. The matter does not rest here as after 13-3-1989 also, the District Magistrate as well as the State Government dilly-dallied the matter for about three months as the detention order was passed on 16th June, 1989. Thus by no stretch of imagination it can be said that there was proximity between the last prejudicial activity of the detenu and the order of detention.
Mr. S.S. Saraon appearing for the State thereafter maintained that as the provisions of the Act came into force w.e.f. 4-7-1988, no move for preventive detention could be sponsored under this Act prior to that. There is hardly any force in the contention as even if it is taken that the above referred activities came to the knowledge of the sponsoring authorities i.e. the police on 5-8-1988 for the first time, there is gap of more than 101/2 months in passing the detention order.
In Lakshman Khatik Vs. The State of West Bengal, , and Jagan Nath Biswas Vs. The State of West Bengal, , it has been held that where there is inordinate delay in the prejudicial activities imputed to the detenu and passing of detention order, it could not be said that the detaining authority had bona fidely applied the test of subjective satisfaction. Again this matter came under the consideration of the Supreme Court in Harnek Singh Vs. State of Punjab and Others, . In that case, a gap of l1/2 years in the prejudicial activity and the passing of detention order was held by their Lordships of the Supreme Court as amounting to punitive in character rather than preventive, and hence the detention order was held to be vitiated.
Mr. S.S. Saraon, the learned Assistant Advocate General, then tried to explain this delay on the ratio of the decision of the Supreme Court in Ashok Narain Vs. Union of India (UOI) and Others, . In that case, the delay of eight months between the last prejudicial activity of the detenu and passing of the detention order was held to be explained on the file as the Enforcement of Directorate of the Ministry of Finance had to verify the activities of the detenu in a racket of foreign exchange at various far off places like Hong Kong, New York and other places. Thus under these circumstances, it was held by the Supreme Court that the time gap between the last activity of the detenu and the passing of the detention order stood well explained on the file and would not render the detention order as illegal. Whereas in the instant case as already discussed, the concerned authorities had treated this matter in a very casual manner even though the prejudicial activities of the detenu were within the knowledge of the sponsoring authority since 5-8-1988.
The second contention of the learned counsel for the petitioner pertains to the non-application of mind by the detaining authority to the facts and circumstances of the case as the factum that the detenu was already on bail in the case registered vide FIR No. 173 since 10-8-1988 was not considered by the detaining authority. Admittedly in the order of detention or in the grounds of detention served upon the detenu, there is no intimation that the detaining authority was aware of the factum that the detenu had already been released on bail. The apex Court in Anant Sakharam Raut Vs. State of Maharashtra and Another, , had held the detention order to be void as the detaining authority was not aware of the factum that in cases already registered against the detenu, he was on bail and facing trial.
Mr. S.S. Saraon, the learned Assistant Advocate General, tried to persuade the Court on the basis of the authority of the Gujarat High Court in Harivadan Modi Vs. District Magistrate and Others, , that the detenu being on bail need not be expressly stated in the grounds of detention. In view of the binding nature of the decision of the Supreme Court upon this Court, the view taken by the Gujarat High Court is thus of no consequence.
Regarding the delay in disposal of the representation filed by the detenu, it transpires that the detaning authority had tried to explain it in para No. 9 of the written reply as under:
"In reply to this para, it is submitted that a representation dated Nil submitted by the petitioner was forwarded to the answering respondent by the Supdt. Central, Jail, Patiala vide his letter dated 31-8-89. Parawise comments of the Distt. authorities on the representation were called for vide letter dated 1-9-89. The Distt. Magistrate, Amritsar sent his parawise comments vide his office letter dated 22-9-89 after making enquiries and verifying the facts through the police authorities. After receipt of the comments, the representation was examined at various levels on 25/9 and 26/9/89 and put up before the competent authority who rejected the representation on 27-9-89 after due consideration. Intimation regarding rejection of the representation was conveyed to the Supdt. Central Jail, Patiala vide letter dated 28-9-89 with the direction to inform the petitioner. Thus it is clear that the representation submitted by the petitioner was considered and disposed of expeditiously and the petitioner was duly informed of the decision on his representation. The contention of the petitioner that he had submitted one copy of the representation to the Govt. of India through the answering respondent is wrong and baseless and hence denied."
The perusal of the above referred explanation reveals that the Superintendent, Central Jail, Patiala, had forwarded the representation of the detenu vide his letter dated 31-8-1989. Parawise comments of the District authorities on the representation were called for vide letter dated 1-9-1989 by the State Government. The District Magistrate sent his parawise comments on 22-9-1989 and thereafter the competent authority rejected the representation on 27-9-1989. It is noteworthy that even if the representation was despatched by the State Government from Chandigarh vide its letter dated 1-9-1989, it would reach the District Magistrate, Amritsar, in ordinary course at the most within two days i.e. on 3-9-1989 but the District Magistrate sent his parawise comments through letter dated 22-9-1989. This gap of 18 days remained unexplained on the file. The District Magistrate had not filed any affidavit in order to explain this delay of 18 days in sending the comments especially when the entire material on which the detention order was passed was already available with the sponsoring authority. Under these circumstances, the delay in disposing of the representation had certainly resulted in negating the mandate contained in Article 22(5) of the Constitution of India.
The apex Court in Smt. Khatoon Begum Ors. Vs. Union of India (UOI) and Others, , in para No. 6 of the judgment had dealt with the obligation of the authorities to promptly dispose of the representation filed by the detenu which flows from the right of affording the detenu the opportunity at the earliest to file the representation under Article 22(5) of the Constitution of India as under:
"The right of a detenu to have his representation considered "at the earliest opportunity" and the obligation of the detaining authority to consider the representation "at the earliest opportunity" are not a right and an obligation flowing from either the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, or the National Security Act, or for that matter any other Parliamentary or State law providing for preventive detention. They are rights and obligations created by the very Constitution which breathe life into the Parliamentary or State law. Article 22(5) enjoins a duty on the authority making the order of detention to afford the detenu "the earliest opportunity of making a representation against the order." The right and obligation to make and to consider the representation at the earliest opportunity is a constitutional imperative which cannot be curtailed or abridged. If the Parliament or the State legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the interdepartmental consultative procedures are such that delay becomes inevitable, the law and the procedures will constravene the constitutional mandate. It is essential that any law providing for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by the detenus. It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable."
Again the apex Court in Raj Kishore Prasad Vs. State of Bihar and Others, , held the delay of 28 days in considering the representation of the detenu as having vitiated the detention order being against the mandate enshrined under Article 22(5) of the Constitution of India. Thus on this score also, the order of detention of the petitioner is not sustainable.
The last contention of the learned counsel for the petitioner that the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act having come into force with effect from 4-7-1988, it could not be applicable to the prejudicial activities of the detenu prior in point of time to the enforcement of this Act is without any force, because this Act simply provides for preventive detention of the detenu in order to check his future propensities in indulging in prejudicial activities and is not punitive in nature. Thus there is no question of restrospective application of the provisions of this Act.
For the foregoing reasons, the impugned order of detention is quashed by accepting this habeas corpus petition. The detenu is ordered to be released forthwith, if not required in any other case.