Shamsher Singh vs State of J&K & Ors.

Khan, J.

This appeal is directed against the judgement of learned Single Judge (brother K. K. Gupta J), passed on May 10, 1990 in Habeus Corpus (W)

No. 30 of 1990.

Even as we are called upon to examine the correctness or other wise of purely two legal contentions raised, while assailing the judgement

impugned, still the facts of the case are required to be briefly stated here.

The appellant initially appears to have been apprehended in connection with FIR No. 168 of 1989 alongwith two other persons for offences having

been allegedly committed under the prevention of illicit Traffic and Narcotic Dugs and Psychotropic Substances Act of 1988 hereinafter called the

Act. A challan came to be produced before the learned Sessions Judge at Jammu, which is still pending and during the proceedings he seems to

have been released on bail in July, 1989. But eventually he came to be detained pursuant to order No. 6 dated December 21, 1989. passed under

sections 3 and 10 of the Act by respondent No. 2, which order came to be served on him on January 9, 1990, when he was rearrested and

lodged in Central Jail, Jammu. The grounds of detention were also served on him.

The appellant challenged the order of detention in Habeas Corpus (W) Petition No : 30/1990, among others on the grounds that the detaining

authority (respondent No: 2) had not indicated any awareness in his detention order regarding the on going prosecution against him on the same

subject matter and that the order of detention had been passed on malafide considerations as was evident from the delay caused between the

receipt of Dossier by respondent No: 2 on July 29, 1989 and passing of detention order on December 21, 1989. Many other grounds were urged

by detenueappellant in his writ petition and even in his memo of appeal but during his arguments, he pressed the two grounds aforesaid only before

us and, as such, we do not consider it necessary to go into other grounds of challenge as set out in the writ petition/Memo of appeal.

Since the arguments urged are legal in nature it becomes easy to examine and answer the contentions raised in the light of law laid down by the

Hon'ble Supreme Court, though, with respect, not uniformally.

We have heard the learned counsel for the parties on two legal pleas raised.

The learned counsel for the appellant laid great emphasis on the contention that in view of the on going criminal prosecution against the appellant

and the fact of his having been released on bail in July, 1989, there was no occasion for the respondent No; 2 to detain the appellant and that the

inability of respondent No : 2 to show any awareness about the on going criminal prosecution and the factum of bail in his detention order vitiates

the order entitling the appellant to be set at liberty. In this regard he placed much reliance on the judgements of the Hon'ble Supreme Court,

reported in AIR 1982 SC : 8 and 1023 AIR 1979 SC 1945 and AIR. 1984 SC 1334.

We have gone through the aforesaid judgements and we do not find anything in these judgements which could lend any support to the contention of

the learned counsel for appellant. The principle laid down in these two judgements is that the passibility of a prosecution or the absence of it is not

absolute bar to an order of preventive detention, the authority may prosecute the offender for an isolated act or acts but if it is satisfied that the

offender has tendency to go on violating the laws then there will be no bar for the State to detain him under the Preventive detention law.

As regards the point raised relating to the awareness to be shown by the detaining authority in his order of detention about the impending or on

going criminal prosecution, we find nothing to support this plea in these judgements.

Moreover, we find that the counteraffidavit filed on behalf of respondents in opposition to the writ petition shows such awareness, both with regard

to the bail granted to the appellant and FIR No: 168 of 1989. It is no where a mandatory requirement that the detaining authority must indicate any

such awareness regarding an impending or on going criminal prosecution against a detenue in his detention order. However, it is well settled that

the detaining authority must disclose awareness regarding a detenue being already in Jail because in such a situation the detenue is prevented from

acting in a prejudicial manner in future. This is fortified by the principle laid down in AIR 1982 SC 1023. We are also fortified in taking this view

by the judgement of the Hon'ble Supreme Court, reported in 1986 SCC (Vol. iv) page 379, wherein it has been held :

...If the person is in detention or is under trial and his conviction is unlikely but his conduct comes within the mischief of the Act then the authority

is entitled to take a rational view of the matter. The grounds must be there. The decision must be bonafide.

Needless to add that even in case where a detenue has obtained an acquittal in a criminal prosecution, there cannot be an absolute bar to his

preventive detention in the facts and circumstances of the case. The same is true of an order of bail. It is true that the learned Single Judge has not

dealt with this aspect of the matter, as had been raised by the appellant in his writ petition, still the contention after examination is found of avail to

the appellant.

The only other point urged by the learned counsel for the appellant was that the order of detention suffered from malafides, as it had been passed

after undue delay caused between the receipt of Dossier by respondent No: 2 on July 29, 1989 and the date of order (December 21, 1989).

We were at pains to examine this contention, but falling back upon explanation offered as found by the learned Single Judge from the record, we

find no force in this contention also. Even though the delay in passing the order may raise suspicion in the peculiar circumstances of case but it

cannot be said to be fatal in every case cannot be a ground for in validating an order of detention. This is more so in case involving an economic

offenders. We derive support for this from the judgements of the Hon'ble Supreme court reported in 1988 S.C.C, (iii) page 155 and 1986 SCC

(I) page 404. In 1988 SCC (iii) page 153 at page 155 in para 10, their Lordships have held as under :

.............. A distinction must be drawn between the delay in making of an order detention under a law relating to preventive detention like the

COFEPSO Act and the delay in complying with the procedural safeguards of Article 22 (5). The rule as to unexplained delay in taking action is

not inflexible. In case of mere delay in making of an order of detention under a law like the COFEPOSA Act enacted for the purpose of dealing

effectively with persons engaged in smuggling and to foreign exchange racketeering who owing to their large resources and influence, have been

posing a serious threat to the economy and thereby to the security of the nation, the courts should not merely on account of delay in making of

order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient

material for the subjective satisfaction of the detaining authority of such a view would net be warranted unless the court finds that the grounds are

'stale' or illusory that there is no real nexus between the grounds and the impugned order of detention.

Therefore, we find no reason to disturb the findings of the learned Single Judge in this regard when he records in his judgement that

correspondence ensued between the detaining authority and the concerned police authorities during the relevant interval because the detaining

authority wanted to arrive at further subjective satisfaction before passing the order of detention. Viewed, thus, the second contention also fails and

deserves to be rejected.

The learned counsel for the appellant has cited various other judgements of the Hon'ble Supreme Court which have no direct bearing on the two

points urged before us. Therefore, we feel no necessity of dilating on those judgements or making any reference to them.

For the reasons stated hereinabove, we dismiss this appeal and uphold the judgement of the learned Single Judge (brother K.K. Gupta) dated

May 10, 1990, passed in Habeas Corpus (W) petition No : 30 of 1990.

The parties are left to bear their own costs. The file be consigned to records.