Joginder Singh vs State of Punjab

T.H.B. Chalapathi, J.

This criminal writ petition is filed to quash the order of detention passed by the 1st respondent dated 9.7.1998 and the order dated 19.4.1999 passed by the 2nd respondent.

The petitioner was arrested in a criminal case registered for the offences under Sections 411 and 414 I.P.C. and also under the Arms Act and under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1988 in case F.I.R. No. 52 dated 4.4.1997, P.S. Lopoke, District Amritsar, but no incriminating article was recovered from the petitioner. Therefore, the State Government passed an order of detention dated 9.7.1998 (vide Annexure P1) under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. In pursuance of the order of detention, the petitioner was arrested on 15.7.1999. The petitioner was supplied the copy of the order on 9.11.1998. Then he gave a representation on 19.11.1998. The 2nd respondent namely Union of India rejected the representation of the petitioner on 22.2.1999. Thereafter the case was put up before the Advisory Board which opined that there was sufficient cause to continue the detention of the petitioner. Hence the petitioner approached this Court by way of this writ petition.

The learned Counsel for the petitioner argued that the petitioner was only arrested on 9.6.1997 and the order of detention was passed after the lapse of more than one year and no other case has been registered against the petitioneraccused and even in F.I.R. No. 52 of 4.4.1997, P.S. Lopoke, District Amritsar, no chargesheet has been filed and there was no material before the authorities for passing the order of detention. The learned Counsel further contended that the order of detention is liable to be set aside because of delay in executing the same. Further, according to the learned Counsel, the petitioner was arrested on 15.7.1998 without supplying the copy of the order and the copy of the order was supplied to the petitioner only on 9.11.1998. Therefore, the order of detention on the ground of non supply of the copy of the order is liable to be quashed.

The liberty of a citizen is the human right. That right can only be curtailed by following the procedure only established by law. Article 22(5) of the Constitution recognises this right and makes it a Fundamental Right of the citizens. Under Article 22(1) of the Constitution no person shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. In the case on hand, the order of detention was passed on 9.7.1998, but the copy of the order of detention was supplied to the petitioner only on 9.11.1998 i.e. nearly after lapse of four months. Thus, there is a clear violation of the Fundamental Right of the petitioner guaranteed under Article 22 of the Constitution of India. On this ground alone, the order of detention is liable to be quashed.

Though the order of detention refers to that the petitioner has been engaging in the importation/transportation or in possession of illicit Traffic in Narcotic Drugs, no reference has been made in the order of detention about the specific instances in which he was involved. Only general and vague allegations have been made. Though the case was registered against the petitioner vide F.I.R. No. 52 dated 4.4.1997, P.S. Lopoke, District Amritsar, even that case has not been referred to in the order of detention (Annexure P1).

It is clear from the record that no prosecution has been launched against the petitioner in F.I.R. No. 52 dated 4.4.1997. Though the petitioner was arrested on 9.6.1997, he was released subsequently. Only in July, 1998, the order of detention was passed and petitioner was arrested again without informing the grounds of his arrest. Even in an ordinary criminal case, the accused person is entitled to be informed of the grounds of his arrest under the procedural law. Section 50 of the Criminal Procedure Code provides that the Police must inform immediately the full particulars of the offence and the grounds for which he has been arrested. Thus the petitioner has got a right to be informed of the grounds of his arrest. This right is not only procedural right as envisaged under Section 50 of the Criminal Procedure Code, but also a constitutional guarantee as provided under Article 22 of the Constitution of India. There is a clear violation of both the Fundamental Right giving protection to the arrested person and also the procedural law.

Admittedly, the petitioner was supplied copy of the detention order four months after his arrest. Therefore, the delay in furnishing the grounds of detention is fatal and the continuance of his detention amounts to denial of the Fundamental Right of the petitioner.

Further Annexure P1 does not refer to any specific instance which requires the petitioner to be detained under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. No material has also been placed by the respondents in support of the grounds of detention dated 9.7.1998. Annexure P3 is an order passed by the Additional Secretary to the Government of India. He has also not recorded any reason for satisfaction that the petitioner is likely to engage in importation, transportation and in possession of Narcotic Drugs. While rejecting the representation of the petitioner vide Annexure P5, the Government of India has not given any reason. The respondents have also not placed any material which was considered by the Advisory Board in its meeting dated 24.3.1999.

There is also no material placed by the respondents before this Court when the matter was placed before the Advisory Board. Annexure P6 only refers that the Advisory Board in its meeting held on 24.3.1999 had opined that there was sufficient cause to continue the detention of the petitioner. Suffice to say that there is admittedly a delay in placing the matter before the Advisory Board which is fatal for continuing the detention of the petitioner.

For the aforesaid reasons, I allow the petition, quash the order of detention and direct the release of the petitioner forthwith.