Subnesh Verma vs State of Punjab

S.D. Bajaj, J

Detenu petitioner Subnesh Verma works under the name and style of M/s Verma Beauty Centre in Kailash Market, Daulat Bazar, Patiala. On 2141988 preventive staff of Central Excise Patiala, recovered from him, in his personal search, 11 gold biscuits of foreign origin weighing 1283.304 grams and valued at Rs. 4,01,674.14 The petitioner was produced before the learned Chief Judicial Magistrate, Patiala, on the following day when he showed him marks of torture on his person and thereby secured from him an order for medical examination and thereafter on the basis of medical report obtained an order for his release on bail.

On the basis of recovery aforesaid dated 2141988 the detaining authority reached its subjective satisfaction to the effect that the petitioner was indulging in the concealing of and dealing with smuggled goods and consequently made against him the detention order Annexure P1 based on grounds of detention Annexure P2 on 17101988.

The petitioner has assailed the impugned order of detention on 13 grounds enumerated in clauses (a) to (m) of paragraph 18 of his Criminal Writ Petition No. 48 of 1989. Salient amongst them which go to the very root of the legality of the detention order Annexure P1 are that the detention order was passed mechanically, without any application of mind, is mala fide and not based on the subjective satisfaction of the detaining authority because the facts regarding the detenu petitioner having been tortured in the custody of the preventive staff of Central Excise on 2141988 and having been admitted to bail by the learned Chief Judicial Magistrate, Patiala, on this score were not in the knowledge of the detaining authority while clamping the order of detention upon the petitioner; that the order of detention having been passed on 20101988 six months after the alleged recovery dated 2141988 there was no nexus or proximity between the attributed act and the reasons for detention and that the confession secured by the customs authorities from the petitioner was retracted by him on the very next day viz. 2241988 when he was produced before the learned Chief Judicial Magistrate, Patiala, on the first available opportunity.

A bare perusal of the detention order Annexure P1 adequately substantiates all the three pleas raised by the detenu petitioner against its legality. In fact, there is no mention therein of the submissions made by the petitioner before the learned Chief Judicial Magistrate on 2241988 and the orders passed by the learned Chief Judicial Magistrate thereon on the same day both in regard to medical examination of the detenu petitioner and thereafter for his release on bail on perusal of the medical report of such examination.

In similar circumstances, it was observed by the Apex Court in Anant Sakharam Raut v. State of Maharashtra and another, 1988(1) R.C.R.(Criminal) 619 : AIR 1987 Supreme Court 137 :

"We do not think it necessary to go into all the grounds urged before us by the petitioner''s counsel in support of his prayer to quash the order of detention. 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 1311986, 1411986 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 undertrial 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."

Similarly in State of U.P. v. Kamal Kishore Saini, 1988(1) R.C.R.(Criminal) 54 : AIR 1988 S.C. 208 , the Supreme Court observed.

"The High Court, therefore, was justified in holding that the assertion made in the return that even if the material had been placed before the detaining authority, he would not have changed the subjective satisfaction as this has never been accepted as a correct proposition of law. It is incumbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act. This finding of the High Court is quite in accordance with the decision of this Court in the case of Asha Devi v. K. Shivraj, (1979)1 SCC 222 : (AIR 1979 SC 447) and Gurdip Singh v. Union of India, AIR 1981 SC 362 : (1981 Cri.L.J 2)."

In this view of the matter, Criminal Writ Petition No. 48 of 1989 succeeds and is allowed. Detenu petitioner Subnesh Verma is ordered to be released forthwith.

Revision allowed.