Gurjeet Kaur vs Secretary to Government of Punjab

V.K. Jhanji, J.

In this petition under Article 226 of the Constitution of India, prayer made is for quashing of order dated 20.9.1995 (Annexure P1) passed under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as the Act) as well as grounds of detention.

In brief, the facts are that on 1.1.1995 at about 12.30 p.m., the police party headed by SI Darshan Singh, SHO, P.S. Saddar Jalalabad along with ASIs Dinesh Singh and Ram Singh, Constable Sukhchain Singh (No. 1281), were going to village Ghubaiya from village Fattuwala and when they reached near the turning in the area of village Ghubaiya, petitioner was apprehended along with an attache case, while standing towards the western side of the road. On seeing the police party, the petitioner tried to escape but was apprehended. An option was given to the petitioner to be searched in the presence of a gazetted officer and lady police. Accordingly, D.S.P. Sub Division, Fazilka along with lady constable Surjit Kaur and Malkiat Kaur reached at the spot. The attache case was opened in their presence and a packet containing opium wrapped in a glazed paper was recovered from the attache case. A sample was taken and recovery memo. was prepared and the petitioner was arrested on the spot and produced before the Ilaqa Magistrate on 1.1.1995 and remanded to police custody.

In order to prevent the petitioner from indulging in prejudicial activities in future, Government of Punjab, in exercise of powers conferred or it under Section 3(1) of the Act, passed an order of detention on 20.9.1995.

In this petition, the detention order and the grounds of detention are being sought to be quashed on the ground that the petitioner had been detained only on the basis of single incident of alleged smuggling. Counsel for the petitioner has contended that the grounds of detention do not mention any incident or activity on the part of the petitioner previous to the alleged activity or after the petitioner was released on bail. He contended that the order of detention is punitive and not preventive and, therefore, the same is liable to be quashed. The other ground taken is that there is no nexus between the alleged activity and the order of detention which has been passed after nine month of the alleged activity. In answer to these submissions, counsel for the respondents submitted that apart from the activity for which the petitioner was arrested on 1.1.1995 surveillance was kept on her after she was released on bail during which it was revealed that she was still indulging in smuggling of opium and in order to prevent her, the order of detention was passed against her.

After hearing the learned counsel for the parties, I am of the view that the order of detention deserves to be quashed. The order of detention has been passed with a view to prevent the petitioner from smuggling in opium in future. In the grounds of detention also, this conclusion is repeated. The detention has, therefore, been ordered with a view to prevent the petitioner from smuggling opium. This opinion has been formed by the detaining authority and the question which is required to be determined is whether there is any material on the basis of which such a conclusion could have been formed. The grounds of detention show that the opinion has been formed by the detaining authority on the basis of single incident of smuggling which took place on 1.1.1995 when the petitioner was found in possession of 12 Kg. of opium and FIR No. 1 dated 1.1.1995 under Sections 18/61/85 of the N.D.P.S. Act was registered at P.S. Sadar Jalalabad against the petitioner. It was conceded by the counsel for the respondents that she is facing trial in the said case. No other incident of smuggling has been stated in the grounds of detention. Rather, what has been stated in the grounds of detention is that during interrogation, petitioner disclosed that she was married to one Paramjit Singh son of Palwinder Singh, 8/9 years back and her husband was working as a truck driver. In November, 1994, her husband returned from Kandla (M.P.) and was accompanied by one Tara Singh son of Santa Singh, resident of Dassuwal, P.S. Valtoha. They had brought opium from U.P. which was delivered at Ferozepur the next day. Petitioner further disclosed during interrogation that in December, 1994, her husband and Tara Singh brought 1520 Kgs. of opium. What has been stated is the activity in which her husband has been involved and not the petitioner. The grounds of detention do not suggest that the petitioner, at any stage, was party to the smuggling activities of her husband. Other than one incident of 1.1.1995, there is no material on record whereupon it can be inferred that the petitioner had been indulging in the smuggling of goods previously. It is, therefore, clear that the grounds of detention are based on nonexistent fact. At this stage, it also deserves to be mentioned that the petitioner was arrested on 1.1.1995 and was ordered to be released on bail by this Court on 5.5.1995 but the order of detention has been passed against the petitioner on 20.9.1995. In the grounds of detention, it has not been disclosed as to why the order of detention, has been passed after nine months of the alleged incident. What has been stated in the written statement is that proposal was received from the District Magistrate on 20.7.1995 which was sent to Legal Agency for examination. On 21.7.1995, the Legal Agency examined the proposal and raised certain observations to be complied with by the Sponsoring Authority. The Sponsoring Authority was informed about observations raised by the Legal Agency on 23.7.1995. T.P.M. reminders were issued to the Sponsoring Authority on 4.8.1995, 11.8.1995, 17.8. 1995 and 4.9.1995 but the required reply was received only on 5.9.1995. On receipt of the reply from the Sponsoring Authority, case was again sent to the Legal Agency for final opinion on 5.9.1995 and the case was received back from the Legal Agency on 6.9.1995. The case was then sent to the State Law Department on 6.9.1995 which was cleared on 7.9.1995. On 8.9.1995 case was sent to the State Home Department for passing appropriate order. The order of detention was passed by the competent authority on 15.9.1995 and formal order was issued on 20.9.1995. The only explanation thus given for sending the proposal as late as in July, 1995 is that after the petitioner was released on bail in May, 1995 surveillance was kept on the activities of the petitioner and proposal for detaining was moved only when it was concluded that she was again indulging in the smuggling activities. In order to ascertain correctness of this averment made in the written statement, counsel for the respondent was asked to produce the record with regard to surveillance kept on the activities of the petitioner but he was unable to show anything in this regard from the record. In the grounds of detention, it has also been stated that the house of the petitioner was raided during surveillance but the counsel for the respondents showed his inability to place on record any proceedings in regard to raid or the result of the raid. In absence of any material showing that the petitioner indulged in prejudicial activities after she was released on bail, I am of the view that the detention order being punitive and not preventive, deserves to be quashed. It is so ordered.

Accordingly, this petition is allowed and it is ordered that the petitioner whose period of detention is going to expire in September, 1996 be released forthwith.