Swaran Singh vs State of Punjab

S.D. Bajaj, J.

Accusation against the detenupetitioner Swaran Singh obtaining in the order of detention, Annexure P1 dated January 23, 1989, based on grounds of detention, Annexure P1/A is that he has been abetting the smuggling of contraband gold. The acts constituting abetment set out in Annexure P2 are his presence at the tubewell when the arrival back (return) of Virsa Singh was being awaited by other coaccused and on his having agreed to participate in the transportation of consignment up to defence drain.

Detenupetitioner has challenged the order of his detention, Annexure P1, passed under subsection (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, on the grounds (i) that he was not concerned with the importation, exportation and transportation of smuggled goods nor did he indulge in smuggling of goods to and from the borders of the State nor did he contravene the prohibitions imposed thereon under the COFEPOSA Act. No recovery of contraband has been effected from the person of the petitioner at any point of time, (ii) that the grounds of detention are totally vague because there is no supporting materials upon which the detention order against the petitioner could be passed; (iii) that the grounds of detention date back as 14/15th May, 1988. There is no proximity between the events mentioned in the grounds of detention and the detention itself, and (iv) that the representation made by the petitioner against his detention was not disposed of by the authorities concerned with utmost expedition, in terms of Article 22(5) of the Constitution of India. It was also asserted that the detaining authority did not apply its mind to the peculiar facts and circumstances obtaining in the case of the petitioner and passed the impugned order of detention mechanically, much less on its subjective satisfaction.

In the reply affidavit filed by Sh. S.K. Bhatla, Under Secretary to Government Punjab, in the Home Affairs Department, it was asserted that the detaining authority passed the order of detention on its subjective satisfaction with due application of mind; that there was close proximity between the prejudicial activities attributed to the petitioner and the date of making of the order of detention and that the unavoidable delay in the disposal of the representation put in by the petitioner had been duly explained. It was also asserted that the petitioner had been indulging in the abetment of smuggling of contraband gold and was, therefore, rightly prevented from indulging in prejudicial activities aforesaid through the impugned order of detention, Annexure P1.

I have heard Shri A.S. Sandhu, Advocate, for the petitioner, Shri S.S. Saron, AAG, Punjab, for the respondentState and carefully gone through the material on record.

Term `abetment'' defined in Section 107 of the India Penal Code postulates guilty knowledge or intention of the a better. Some active suggestion or support or stimulation from the detenu petitioner to persons allegedly instigated through his abetment to the commission of the act; which constitutes the offence was required to be mentioned in the grounds of detention, Annexure P2, to sustain the charge of abetment against the detenupetitioner. The detaining authority having not adverted to this aspect of the matter, the impugned order of detention cannot be said to have been passed by it with due application of mind; much less its subjective satisfaction. In result the impugned order of detention, Annexure P1, based on grounds of detention, Annexure P1/A, thus gets vitiated on this score alone.

The last prejudicial activity attributed to the petitioner is of May 15, 1988. The order of detention, Annexure P1, was passed against the petitioner by the detaining authority on January 23, 1989, eight months and one week thereafter and actually made effective through detention of the petitioner on its basis on March 13, 1989 after about ten months of the last prejudicial activity. "Amrik Singh alias Mika v. The State of Punjab and another, 1987(1) Recent Criminal Reports 443 and Nishan Singh v. State of Punjab, 1988(1) Recent Criminal Reports 386 are both authorities of our own High Court for the review, "In a similar situation their Lordships of the Supreme Court in Harnek Singh v. State, AIR 1982 SC 682 dealt with a matter where a case under Sections 307, 414 and 411, India Penal Code, was registered against the petitioner there on 27th February, 19890, and he was ordered on 4th of November, 1980 to be detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 52 of 1974 and was put behind the bars on 10th of July, 1981. The acts alleged in that case were also the subjectmatter of the prosecution launched against the detenu and during those proceedings he was on bail and was appearing in Court on every hearing until he was detained. It was observed by their Lordships that "no reason was put forth for the detenu not being taken in custody in pursuance of the order or detention right from January 2, 1981 till July 10, 1981, and ultimately it was held that in those circumstances, the detention took the character of punitive, rather than preventive action and was, therefore, vitiated. It has repeatedly been laid down by this Court as well as the final Court that the purpose of passing detention orders is not to punish the detenu for his activities in the distant past but is rather to prevent him from carrying on the activities which are otherwise found to be prejudicial under the Act."

Representation dated March 26, 1989, was admittedly decided on April 25, 1989, after 30 days. Explanation offered for this inordinate delay in the disposal of the representation is "In reply to this para it is submitted that the petitioner made a representation dated 6.3.1989 which was received on 30.3.1989 through the Superintendent, Central Jail, Amritsar, comments of the Customs authorities on the representation were called for vide letter dated 31.3.1989. The Assistant Collector Customs (P) Amritsar sent his parawise comments to the SSP, Amritsar vide letter dated 4.4.1989 (1.4.1989 and 2.4.1989 were Saturday and Sunday respectively). The SSP Amritsar, after making enquiries and verifying the facts sent the comments to the District Magistrate, Amritsar who, after making further enquiries and satisfying himself sent the comments to the answering respondent vide letter dated 17.4.1989 (8.4.1989; 9.4.1989; 13.4.1989 to 16.4.1989 were holidays). The district machinery was also busy in tackling various other law and order problems due to the escalation of the terrorists'' activities. Besides it also remained busy with other activities and problems, which are overwhelming in the border district of Amritsar and needed prompt and immediate attention. Thereafter, the representation was examined at various levels on 19/4; 20/4; 21/4; (18/4; 22/4 and 23/4 were holidays) and 24.4.1989 and put up before the competent authority who rejected the representation on 25.2.1989 after due consideration. Intimation regarding rejection of the representation was conveyed to the Superintendent, Central Jail, Amritsar vide letter dated 28.4.1989 who further conveyed the decision to the petitioner on 1.5.1989. Thus, there was no delay in deciding the representation as the same was disposed of promptly and expeditiously and in accordance with law."

In almost similar circumstances their Lordships of the Supreme Court observed in Aslam Ahmed Zahire Ahmed Shaik v. Union of India and others, 1989(1) Recent Criminal Reports 486 . "This Court in Abdul Karim and others v. State of West Bengal, 1969(1) SCC 433 held : "The right of representation under Article 22(5) is a valuable constitutional right and is not a mere formality." This view was reiterated in Rashid S.K. v. State of West Bengal, 1973(3) SCC 476 while dealing with the constitutional requirement of expeditious consideration of the petitioner''s representation by the Government as spelt out from Article 22(5) of the Constitution observing thus : "The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. The right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty the right which is highly cherished our Republic and its protection against arbitrary and unlawful invasion". (7) It is neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases within which period the representation of detenu has to be disposed of with reasonable expedition but it must necessarily depend on the facts and circumstances of each case. The expression `reasonable expedition'' is explained in Sabir Ahmed v. Union of India, 1980(3) SCC 295 as follows : "What is `reasonable expedition'' is a question depending on the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous inaction, avoidable retapism and unduly pratracted procrastiration. (8) See also Vijay Kumar v. State of Jammu and Kashmir and others, 1982(2) SCC 43 and Raisuddin alias Babu Tamchi v. State of U.P. and another, 1983(4) SCC 537. (9) Thus when it is emphasised and reemphasised by a series of decisions of this Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint or remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22(5) of the Constitution. (10) A contention similar to one pressed before us was examined by this Court in Vijay Kumar''s case (supra) wherein the facts that the representation of the detenu therein dated 29.7.1981 was forwarded to Government by the Superintendent of Jail on the same day by post following by a wireless message, but according to the Government, the representation was not received by them. Thereafter, a duplicate copy was sent by the Jail Superintendent on being requested and the same was received by the Government on 12.8.1981. Considering the time lag of 14 days in the given circumstances of that case, this Court though overlooked the same and allowed the writ petition on the consequent time lag, made the following observation : "The jail authority is merely a communicating channel because the representation has to reach the Government which enjoys the power of revoking the detention order. The intermediary authorities who are communicating authorities have also to move with an amount of promptitude so that the statutory guarantee of affording earliest opportunity of making the representation and the same reaching the Government is translated into action. The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that much time was lost in the transit if Government enacts a law like the present Act empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the Government and not the detaining authority, of necessity the State Government must gear up its own machinery to see that in these cases the representation reaches the Government as quickly as possible and it is considered by the authorities with equal promptitude. Any slackness in this behalf not properly explained would be denial of the prosecution conferred by the statute and would result invadalition of the order." (11) Reverting to the instant case, we hold that the above observation in Vijay Kumar''s case will squarely be applicable to the facts herein. Indisputedly the Superintendent of Central Prison of Bombay to whom the representation was handed over by the detenu on 16.6.1988 for mere onwards transmission to the Central Government has callously ignored for and kept it in cold storage unattended for a period of seven days, and as a result of that, the representation reached the Government 11 days after it was handed over to the Jail Superintendent. Why the representation was retained by the Jail Superintendent has not at all been explained in spite of the fact that this court has permitted the respondent to explain the delay in this appeal if not before the High Court. (12) In our view, the supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant''s representation by the Government which received the representation 11 days after it was handed over to the Jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible."

Even prior thereto their Lordships of the Supreme Court had also observed in Suresh v. State of U.P., AIR 1981 SC 1122 : "We may make it clear, as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We would emphasis that it is the duty of the State to proceed to determine representations of the character abovementioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. This not having been done in the present case we have no option but to declare the detention unconstitutional."

In this view of the matter, detention order Annexure P1 based on grounds of detention, Annexure P1/A gets vitiated on account of the detaining authority having not disposed of the representation filed by the petitioner on March 26, 1989, with utmost expedition in terms of Article 22(5) of the Constitution of India.

For the reasons given above, Criminal Writ Petition No. 895 of 1989 succeeds and is allowed. Detention order, Annexure P1, based on grounds of detention, Annexure P1/A is quashed and the detenupetitioner Swaran Singh is ordered to be set at library forthwith if not required by the State in any other case.