Jasbir Kaur vs Union of India

S.D. Bajaj, J.

In Criminal Writ Petition No. 2358 of 1988 Shrimati Jasbir Kaur wife of detenuJasbir Singh Virdi has challenged the detention of her husband aforesaid under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, vide order Annexure P1 based on grounds of detention Annexure P2 with effect from 31.10.1988 on the grounds that the factum of detenu being already on interim bail with effect from 29.8.1988 was not adverted to by the Detaining Authority therein or even considered; that through the same order dated 29.8.1988 passport of the petitioner''s husband having been seized, the detenu could not indulge in prejudicial activities any further and as such there was no justifiable ground for making the order of prevention detention against him and that for the occurrence of September, 1987 provisions of the Act enforced on 4.7.1988 could not be invoked by the Detaining Authority retrospectively.

In reply it was asserted that cause of action having not arisen within the territorial jurisdiction of this Court, High Court of Punjab and Haryana at Chandigarh had no jurisdiction to entertain and adjudicate upon the criminal writ field by the detenu''s wife; that the factum of detenu being on interim anticipatory bail was duly considered by the detaining authority, that the Detaining Authority or its subjective satisfaction felt that in spite of it and the seizure of the detenu''s passport it was still necessary to order preventive detention of the detenu and that the order annexure P1 was passed by the Detaining Authority on due application of mind. Hence, the writ merits dismissal.

The firm of Messrs. Vinod Metal Industries 761, Mota Singh Nagar, Jalandhar, under whose name and style the petitioner''s husband, detenu Jasbir Singh Virdi, is alleged to have been through the deal with Messrs. Raja Ram New Fashions of United Kingdom is located at Jalandhar. Residential premises of the detenu bearing No. 296, Lajpat Nagar, Jalandhar were also searched by the Customs Authorities for the recovery of in criminating material against the detenu at Jalandhar. A part of the cause of action can, therefore, certainly be regarded to have arisen at Jalandhar; within the territorial jurisdiction of this Court. The preliminary objection regarding jurisdiction has, therefore, no legs to stand upon and is consequently jurisdiction has, therefore, no legs to stand upon and is consequently overruled. Similar view of the same objection was taken by my learned brother Ujagar Singh, J., in Malook Singh alias Master v. Union of India and another, Criminal Writ Petition No. 1375 of 1988 decided on 12.12.1988. The reasoning set out therein for overruling identical objection would be treated as a part of this judgment for reaching the same conclusion.

A reference to the order of detention Annexure P1 clearly establishes that the factum of the detenu having been enlarged on interim anticipatory bail with effect form 29.8.1988 was taken notice of or adverted to by the Detaining Authority therein. In similar circumstances in Anant Sakharam Raut v. State of Maharashtra and another, AIR 1987 Supreme Court 137, wherein their Lordships of the Supreme Court observed :

"The one contention strongly pressed before us by the petitioner''s counsel is that the Detaining Authority was not made aware at the time the detention order was made that the detenu had moved applications for bail in the three pending cases and that he was enlarged on bail on 13.1.1986, 14.1.1986 and 15.1.1986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of Detaining Authority while passing the order of detention.

In our view this is the short manner in which the two cases can be disposed of. If the petitioner is found disturbing law and order or misusing the bail granted to him, the authorities would be at liberty to move the appropriate Court to get the bail orders cancelled. One does not know how the Detaining Authority would have acted if he was made aware of the above details.

We are not satisfied that this is a fit case to resort to preventive detention. We refrain from referring to the other grounds urged before us and from examining them. The petitioner is entitled to succeed on the first ground.

We hold that there was clear nonapplication of mind on the part of the Detaining Authority about the fact that the petitioner was granted bail when the order of detention was passed."

With reference to the observations made in Ashok Kumar Jaggi v. Union of India and others, 1988(2) Recent Criminal Reports 168 and Harmohan Singh v. Union of India and others, 1989(1) Recent Criminal Reports 125 , it was urged that the passport of the detenu having been seized, vide order dated 29.8.1988, the making of order Annexure P.1 of preventive detention against him on 31.10.1988 was uncalled for and indicated want of application of mind by the Detaining Authority to the peculiar facts and circumstances obtaining in the present case. The relevant observations read :

"In the present case the detention has been ordered with a view to prevent the petitioner from smuggling. The detention order does not indicate anything else and it has not been ordered for a diversified activity such as preventing from smuggling, cancelling smuggled goods and the transportation thereof or dealing in or disposing of smuggled goods. In that situation perhaps things would be a little different as mere seizure of passport would not be sufficient to prevent a person from indulging in that type of mischief. In the present case the detention is ordered for the limited purpose of preventing from smuggling and once the passport of the petitioner stands seized, he obviously could not travel abroad muchless to smuggle. If the purpose, therefore, was otherwise achieved there is no basis for ordering his detention. The justification offered that the petitioner could procure another passport and indulge in smuggling is a figment of imagination, entirely a manufacture of the mind of the Detaining Authority based on no material. It is other words mean that the detention has been ordered by him on an imaginary ground. Yet another ground for ordering detention is to prevent the petitioner from going underground. I am really not able to appreciate as to vest is meant thereby."

Lastly, it was urged that the prejudicial activity attributed to the detenu is of September, 1987 while the Narcotic Drugs and Psychotropic Substances Act, 1958, came into force on 4.7.1988 and, as such, detention order Annexure P1 had no nexus with the prejudicial activity and was consequently passed without any application of mind. As already held by me in Banta Singh v. State of Punjab and another, 1989(1) All India Criminal Law Reporter 758, how could the provisions of Narcotic Drugs and Psychotropic Substances Act, 1988 admittedly enforced on 4.7.1988, be enforced retrospectively in respect of the prejudicial activity attributed to the detenu which is admittedly of September, 1987. This aspect of the matter having not been adverted to by the Detaining Authority, order of detention Annexure P1 is also rendered illegal on this score as well.

For the reasons given above, the criminal writ succeeds and is allowed. Detention of the petitioner''s husband on the basis of detention order Annexure P.1 based on grounds of detention Annexure P2, is rendered illegal. The detenu is consequently ordered to be set at liberty forthwith.