Naseem Ahmed vs State of Punjab

V.K. Bali, J. (Oral)

Naseem Ahmed son of Khalil Ahmed through present petition filed by him under Article 226 of the Constitution of India seeks writ in the nature of habeas corpus directing respondent to release him from illegal and unlawful detention.

Brief facts of the case reveal that petitioner is being kept in detention in Central Jail, Patiala, under detention order which was passed by respondent under Section 3(1) of the Conservation of the Foreign Exchange & Prevention of Smuggling Activities Act, 1964 (hereinafter to be referred to as COFEPOSA Act). He is aged about 35 years and has got four children. He has got aged parents, father being 75 years and mother being 68 years old. Petitioner had been dealing in wood carving works at Saharanpur. He along with one Jabbar son of Abdul Khaliq and Mohmad Sadiq, who were also residents of Saharanpur, started the work of sale of wood carved items in the month of December, 1990 at the footpaths of Amritsar to earn their livelihood after purchasing and preparing the same at Saharanpur. One Mohmad Hassan son of Maqsood Ahmed of Saharanpur was known to the petitioner and aforesaid two others. He had gone to Pakistan and returned to India. He reached Amritsar on 1.1.1991. Petitioner along with Jabbar Khan and Mohmad Sadiq went to Amritsar Railway Station on 1.1.1991 to receive him and noticed that some persons after having left packets behind were running. It was in good faith and like a good citizen that the petitioner is stated to have enquired from the persons chasing the aforesaid fleeing persons as to what had happened. On that, the persons disclosed their identity as Customs Officers and told them to pick up the packets and bring the same. On petitioner''s and others refusing to do so, the persons claiming themselves to be customs officers gave severe beatings to them on the railway platform. During the course of investigation, the customs officers raided Hotel National, Amritsar on 1.1.1991 from where they arrested one Gulshar and Altaff and recovered currency notes worth Rs. 2,28,600/. The aforesaid Gulshar and Altaff convinced the Customs Officers that they had come from Saharanpur to start wood business at Amritsar with Gulzar Ahmed of Amritsar and the said currency notes brought by them from Saharanpur were to be invested in hiring the shop at Amritsar and to give Pugri for the same and for the purchase of goods. However, the Customs Officers, it is alleged, falsely implicated the petitioner and two others in a criminal case under Section 135 of the Customs Act and arrested them on 2.1.1991. They gave them beatings and got their signatures by undue influence, coercion and beatings on some statements said to have been made on 2.1.1991 at Custom House, Amritsar. Petitioner was produced before the Special Chief Judicial Magistrate, Amritsar on 3.1.1991. He stated before the Court that he had been falsely implicated and that his statement had been recorded under threat, beatings, undue influence through the application moved by his counsel on 3.1.1991. It is stated that the statement of petitioner recorded on 2.1.1991 was retracted on first opportunity available before the Judicial Officer, He was released on bail on 10.1.1991 by the Chief Judicial Magistrate, Amritsar, He was on bail and regularly attending the Court at Amritsar on the dates fixed in the case. However, on the night of 18.12.1994 when the petitioner was sleeping at his house at Saharanpur, the police party arrested him from his house and took him to Police Line at Amritsar where he was detained. He was not produced before any judicial officer nor was any remand obtained. He was served with a detention order dated 29.8.1991 on 19.12.1994 at Amritsar. It is this order, as referred to above, which is sought to be quashed in the present petition.

The main grounds asking for quashing the detention order are that the alleged prejudicial activity was of 1.1.1991 and the order of detention, Annexure P3 was passed on 29.8.1991 i.e. after a period of about eight months and the same was made effective on 19.12.1994 i.e. after a period of more than four years of the alleged prejudicial activity. It is also pleaded and so argued by Mr. Makani, learned counsel for the petitioner, that no effective steps were taken to arrest the petitioner all this while and this in itself was sufficient to quash the order of detention.

In pursuance of the notice having been issued by this Court on 18.1.1995, respondent was served for 24.1.1995. In the admitting order, contention of learned counsel for the petitioner is noted that order of detention was passed on 29.8.1991 whereas the petitioner was arrested on 18.12.1994. On 14.2.1995 the counsel appearing for the State of Punjab prayed for an adjournment enabling respondent to file reply and consequently the case was adjourned to 1.3.1995. On the said date of similar request made by the State Counsel, case was adjourned to 10.3.1995 on which date the following order was passed :

"It is a detention matter and twice over the respondent has taken adjournment in the matter enabling the respondentState to file, the reply. No reply has been filed even today. One last opportunity is granted to the respondentState to file reply in the matter. It is made clear that no further adjournment will be given. This is so particularly in view of the fact that Mr. Mehtani, learned counsel for the petitioner vehemently contends that detention order against Jabbar against whom same facts were alleged as have been alleged against the petitioner, has already been quashed by this Court in Criminal Writ Petition No. 75 of 1992, decided on 3rd of March, 1992 (Jabbar Khan v. State of Punjab, 1992(2) Recent C.R. 223. )."

Mr. Masih, learned Assistant Advocate General, Punjab, today again requested for adjournment which, in view of order dated 10.3.1995, is declined.

The matter seems to be squarely covered in favour of the petitioner by judgment of this court in Jabbar Khan v. State of Punjab, 1992(2) RCR 223. As mentioned above, detention order sought to be quashed by Jabbar Khan was on the same facts as have been alleged against the petitioner herein. It has been held in Jabbar''s case (supra) that "when order of detention was passed but not served for even months and detenue was on bail and visiting Court and the delay was not explained, it was in itself good ground to quash the detention order." Thus, on the parity of reasoning given in Jabbar''s case (supra) and in view of the facts that the assertions of fact made in the petition have remained uncontroverted, detention order, Annexure P3, against the petitioner is quashed. He be set at liberty forthwith.