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2000 DIGILAW 1029 (PNJ)

Harjit Singh Alias Jittu v. State Of Punjab

2000-08-29

V.M.JAIN

body2000
Judgment V.M.Jain, J. 1. This is a petition under Article 226 of the Constitution of India, seeking quashment of the order of detention dated 31.8.1999 and the subsequent orders dated 18.11.1999 and 3.12.1999. 2. In the petition it was alleged by the petitioner that he was in detention in Central Jail Patiala. It was alleged that he was an agriculturist by profession and was a resident of Village Seron, now Village Bhail Dhaiwala, Police Station Goindwal Sahib, Police District Tarn Taran, District Amritsar. It was alleged that the petitioner and his brother Hardeep Singh were picked up by the police of CIA Staff, Tarn Taran and were falsely involved in cases under Section 18 of the NDPS Act, 1985 on 4.4.1998 vide FIR No. 24 (against the petitioner) and FIR No. 25 (against his brother Hardeep Singh) of P.S. Goindwal Sahib, in respect of alleged recovery of 11-1/2 kgs. and 8-1/2 kgs. of opium respectively from their possession. It was alleged that both the brothers were confined in the Jail at Amritsar and were sent up for trial before the Sessions Court in their respective cases and that the cases were still pending at Amritsar. It was further alleged that prior to the registration of FIR No. 24 dated 4.4.1998, the police had involved the petitioner in FIR No. 120 of 1997 of PS Goindwal Sahib under Section 382 IPC and that the said case was withdrawn by the prosecution against the petitioner as there was no evidence to prove the alleged offence against him and resultantly the petitioner was discharged by the SDJM Tarn Taran vide order dated 10.6.1999. It was alleged that except the said case under Section 382 IPC, there was no other case registered against the petitioner prior to FIR No. 24 dated 4.4.1998 under Section 18 of the NDPS Act or even thereafter. It was alleged that Tarn Taran Police without any basis initiated and put up proposal for the detention of the petitioner and the District Attorney, Amritsar recommended for the detention of the petitioner on the sole basis of recovery of heavy quantity of opium, which fact is yet to be proved by the prosecution before the Court. It was alleged that Tarn Taran Police without any basis initiated and put up proposal for the detention of the petitioner and the District Attorney, Amritsar recommended for the detention of the petitioner on the sole basis of recovery of heavy quantity of opium, which fact is yet to be proved by the prosecution before the Court. It was alleged that on the basis of the said recommendation of the District Attorney, the Punjab Government passed order of detention dated 31.8.1999 (copy annexure P-5) under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as the Act) on the alleged basis of engaging in importation, transportation and possession of narcotic drugs, even without specifying the period of detention. It was alleged that after the detention order was served upon the petitioner in Central Jail Amritsar, he was also served with the grounds of detention, copy annexure P-6. It was alleged that since the order of detention and grounds of detention were in English and not in the language of the petitioner i.e. Punjabi, he being illiterate, handed over the detention order to his counsel to submit a representation on his behalf and thereafter the counsel for the petitioner submitted representation, copy annexure P-7 to the concerned authority i.e. respondent No. 2 within the stipulated period. It was further alleged that the representation was also submitted to the Central Government on 20.10.1999. It was further alleged that the case of the petitioner was referred to the "Board" for opinion and the "Board" illegally and wrongly opined against the petitioner and recommended the detention of the petitioner. It was alleged that on the basis of the said opinion of the "Board", the State Government without any application of mind confirmed the detention of the petitioner vide order dated 3.12.1999, copy annexure P-8, while the Central Government also rejected the representation of the petitioner vide order dated 18.11.1999, copy Annexure P-9 wrongly and illegally. It was alleged that the order of detention dated 31.8.1999, copy annexure P-5 and its confirmation vide order dated 3.12.1999, copy annexure P-8 and order of rejection dated 18.11.1999, copy annexure P-9 passed by the Central, Government were illegal and void and were liable to be set aside, inter alia on the ground that the same were passed without any application of mind. It was further alleged that the alleged recovery of 11-1/2 kgs. of opium from the petitioner on 4.4.1998 was the subject matter of his prosecution in FIR No. 24 dated 4.4.1998 under Section 18 of the NDPS Act. It was alleged that there was nothing on the record to show that the antecedents of the petitioner were such which may justify the detention of the petitioner on 31.8.1999 i.e. after more than 1 year and 4 months of the alleged recovery. It was alleged that the delay in passing the detention order by itself was fatal and would prove the non- application of mind. It was further alleged that the order of detention passed by the detaining authority is a cyclostyled order without any application of mind. It was alleged that the order of detention was contrary to Section 3(1) of the Act. It was further alleged that the order of detention is essentially precautionary in nature based on the past conduct and other surrounding circumstances. It was alleged that in the present case, there was absolutely no justification for passing the order of detention. It was further alleged that there were no sufficient grounds justifying the detention of the petitioner. It was further alleged that even though the petitioner understands only Punjabi language being illiterate, yet the detention order and the grounds of detention were passed in English language which the petitioner did not understand. It was further alleged that in the present case the detention of the petitioner was unwarranted and untenable since its inception, as he was still in judicial custody since 4.4.1998 in the aforesaid FIR. It was further alleged that the orders passed by the State Government on 3.12.1999 and the Central Government on 18.12.1999 were also passed without any application of mind and were even otherwise non-speaking. It was accordingly prayed that the order of detention and the subsequent orders passed by the State Government and Central Government be quashed and the petitioner be set at liberty and be released from detention forthwith. 3. The said petition was contested by respondents. Respondents 1 and 2 in their joint written statement controverted the allegations contained in the petition. It was alleged that the petitioner was involved in FIR No. 24 dated 4.4.1998 of PS Goindwal Sahib under Section 18 of the NDPS Act for the recovery of 11.500 kgs. of opium. 3. The said petition was contested by respondents. Respondents 1 and 2 in their joint written statement controverted the allegations contained in the petition. It was alleged that the petitioner was involved in FIR No. 24 dated 4.4.1998 of PS Goindwal Sahib under Section 18 of the NDPS Act for the recovery of 11.500 kgs. of opium. It was admitted that in FIR 120 of 1997 under Section 382 IPC of PS Goindwal Sahib, the petitioner was discharged by the Court of SDJM Tarn Taran. It was alleged that the proposal for the detention of the petitioner under the Act was initiated and approved by the competent authority after perusing the evidence against him and the legal certificate given by the District Attorney. It was alleged that the order of detention passed by the competent authority was based upon evidence collected by the competent authority. It was alleged that the grounds of detention were supplied to the petitioner in English as well as in Punjabi. It was alleged that the representation submitted by the petitioner against the detention was rejected by the Central Government vide order dated 18.11.1999. It was further alleged that the order of detention and the subsequent orders confirming the same were perfectly legal and valid. It was accordingly prayed that the petition be dismissed. A separate reply was filed on behalf of respondent No. 4. It was alleged that the State Government had issued the detention order on 31.8.1999 and had forwarded the same to the Central Government alongwith necessary documents in terms of Section 3(2) of the Act. It was alleged that the representation dated 20.10.1999 made by the petitioner was received in the office on 2.11.1999 through the Superintendent Central Jail, Amritsar, upon which the comments were called from the State Government as well as the Additional Director General of Police (Intelligence), Punjab, Chandigarh vide letter dated 3.11.1999 and the comments were received on 17.11.1999. Thereafter the representation and the comments were submitted to the Central Government on 18.11.1999 who considered it on the same day and the petitioner was informed about the decision on the same day i.e. 18.11.1999 and the same were served upon the petitioner on 7.12.1999 through the Superintendent Central Jail, Patiala. Thereafter the representation and the comments were submitted to the Central Government on 18.11.1999 who considered it on the same day and the petitioner was informed about the decision on the same day i.e. 18.11.1999 and the same were served upon the petitioner on 7.12.1999 through the Superintendent Central Jail, Patiala. The Superintendent Central Jail, Patiala (respondent No. 3) in his separate written statement alleged that the petitioner was transferred from Central Jail, Amritsar to the Central Jail, Patiala on 13.11.1999. It was alleged that the order of detention dated 31.8.1999 was served upon the petitioner on 16.9.1999. It was further alleged that the detention order of the petitioner was confirmed for one year by the Joint Secretary (Home) Punjab vide order dated 3.12.1999 under Section 3 of the Act and the petitioner was informed about the order of confirmation. It was further alleged that the copy of the representation submitted by the petitioner against the order of detention was sent to the State Government on 20.10.1999 i.e. on the same day when the petitioner submitted his representation. It was further alleged that the representation of the petitioner was considered and rejected by the Central Government vide order dated 18.11.1999 and he was informed about the rejection order on 23.11.1999. It was further alleged that the order of detention was also confirmed for one year by the Punjab Government vide order dated 3.12.1999. 4. I have heard the learned counsel for the parties and have gone through the record carefully. 5. The learned counsel appearing for the petitioner, while challenging the legality of the detention order dated 31.8.1999, copy annexure P-9, submitted before me that under Section 3(1) of the Act, the authority has to be satisfied about the necessity to detain a person under the Act with a view to prevent him from engaging in illicit trafficking in narcotic drugs and psychotropic substances. It was submitted that in the present case, the grounds of detention furnished to the petitioner were irrelevant and as such there was no occasion for the detaining authority to be satisfied about the detention of the petitioner. Reliance was placed on Rameshwar Shaw v. District Magistrate, Burdwan and another, AIR 1964 SC 334. It was further submitted that while passing the order of detention, the detaining authority is required to apply its mind whether there was any necessity for passing the order of detention. Reliance was placed on Rameshwar Shaw v. District Magistrate, Burdwan and another, AIR 1964 SC 334. It was further submitted that while passing the order of detention, the detaining authority is required to apply its mind whether there was any necessity for passing the order of detention. It was submitted that since the petitioner was already in custody, there was no necessity to pass the order of detention against him. Reliance was placed on N. Meera Rani v. Govt. of Tamil Nadu and another, AIR 1989 SC 2027; Anand Prakash v. The State of U.P. and others, AIR 1990 SC 516; Dharmendra Suganchand Chelawat and another v. Union of India and others, AIR 1990 SC 1196 and Binod Singh v. District Magistrate, Dhanbad, Bihar and others, AIR 1986 SC 2090. 6. In the present case, the relevant extracts of the order of detention dated 31.8.1999, copy Annexure P-5 read as under :- "Whereas the Governor of Punjab is satisfied that you Harjit Singh @ Jittu S/o Shri Skattar Singh R/o Seron now Bhail Dhaiwala, P.S. Goindwal Sahib (Amritsar) have been engaging in importation, transportation and possession of narcotic drugs within meaning of illicit traffic in narcotic drugs and, therefore, it is necessary to make an order directing that you Harjit Singh be detained with a view to preventing you from indulging in the above mentioned prejudicial activities in future. 2. Now, therefore, in exercise of the powers conferred by Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (Central Act No. 46 of 1988), the Governor of Punjab is pleased to direct that you Harjit Singh be detained." 7. From a perusal of the above, it would be clear that the detaining authority was satisfied about the detention of the petitioner under the Act. In AIR 1964 SC 334 (supra), it was held by a Constitution Bench of Their Lordships of the Supreme Court that the satisfaction of the detaining authority is his subjective satisfaction, and so is not justiciable and it would not be open for the detenu to ask the Court to consider the question as to whether the said satisfaction of the detaining authority can be justified by the application of objective tests. In the said authority, it was further held by their Lordships that even though the satisfaction of the detaining authority is subjective satisfaction of the said authority, yet cases may arise where the detenu may challenge the validity of his detention on the ground of mala fides and in support of the said plea may urge that along with other facts which show mala fides, the Court may also consider the grievance that the grounds served on him cannot possibly or rationally support the conclusion drawn against him by the detaining authority. It is only in this incidental manner and in support of the plea of mala fides that this question can become justiciable; otherwise the reasonableness or propriety of the said satisfaction contemplated by Section 3(1)(a) cannot be questioned before the Courts. It was further held in the said authority that if any of the grounds furnished to the detenu are found to irrelevant the satisfaction of the detaining authority on which the order of detention is based is open to challenge and the detention order is liable to be quashed. If, however, the grounds on which order of detention proceeds are relevant and germane to the matters which fall to be considered under Section 3(1)(a), it would not be open to the detenu to challenge the order of detention by arguing that the satisfaction of the detaining authority is not reasonably based on any of the said grounds. In view of the law laid down by their Lordships of the Supreme Court, in my opinion, the petitioner cannot be allowed to challenge the satisfaction of the detaining authority to pass the order of detention. This is especially so when the counsel for the petitioner during the course of arguments could not point out any of the grounds detailed in Annexure P-6 to be irrelevant or foreign to the provisions of the Act, nor there is anything on the record to show that the grounds are vague. 8. So far as the question regarding the necessity of passing the order of detention is concerned, the petitioner was admittedly confined in Central Jail, Amritsar, in connection with FIR No. 24 dated 4.4.1998 under Section 18 of the NDPS Act, at the time when order of detention was passed. 8. So far as the question regarding the necessity of passing the order of detention is concerned, the petitioner was admittedly confined in Central Jail, Amritsar, in connection with FIR No. 24 dated 4.4.1998 under Section 18 of the NDPS Act, at the time when order of detention was passed. In the detention order dated 31.8.1999, Annexure P-5, there is nothing to indicate that this question was considered by the detaining authority that the petitioner was already in custody. However, in the grounds of detention Annexure P-6, it was considered by the detaining authority that the petitioner was arrested in FIR No. 24 dated 4.4.1998 under Section 18 of the NDPS Act and he was in judicial custody in that case at the time when the order of detention was passed. However, in the grounds of detention as well there is nothing to indicate that the release of the petitioner on bail or otherwise in the said NDPS Act case was considered by the detaining authority while passing the order of detention. Only it was noticed in the grounds of detention that the petitioner was in judicial custody in the NDPS Act case. In AIR 1990 SC 1196 (supra) it was held by Their Lordships of the Supreme Court that an order of detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. It was further held in the said authority that the "compelling reasons" in the context of making an order of detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. In the reported case, it was mentioned in the grounds of detention that the detenu had been remanded to the judicial custody and the grounds of detention did not show that the detaining authority apprehended that the detenu would be released from custody. On the other hand, the bail application moved by the detenu had been rejected by the Sessions Judge a few days prior to the passing of order of detention. Under these circumstances, it was held by Their Lordships that it could not, therefore, be said that there was a reasonable prospect of the detenu being released from custody at the time when the order of detention was passed. In the result, the order of detention was set aside by Their Lordships of the Supreme Court. In AIR 1989 SC 2027 (supra) it was held by Their Lordships of the Supreme Court that subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case. It was further held in the said authority that where the detention order and the grounds of detention indicate the detaining authoritys awareness to the fact that the detenu was in jail at the time of the making of the detention order but there was no indication that the detaining authority considered it likely that the detenu could be released on bail, the order of detention was clearly invalid since the same was made when the detenu was already in jail custody for the offence of bank dacoity and there was no prospect of his release. In AIR 1986 SC 2090 (supra), it was held by Their Lordships of the Supreme Court that if a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. 9. In the present case as referred to above, the petitioner was already in judicial custody in a case under NDPS Act at the time when the order of detention was passed. There is nothing on the record to show that the detaining authority was of the opinion that the petitioner was likely to be released from custody, which necessitated passing of the order of detention. There is nothing on the record to show that the detaining authority was of the opinion that the petitioner was likely to be released from custody, which necessitated passing of the order of detention. Under these circumstances, in my opinion, there was absolutely no occasion for the detaining authority to have passed the order of detention of the petitioner under Section 3(1) of the Act. That being so, the order of detention is liable to be quashed on his ground alone. 10. For the reasons recorded above, the present petition is allowed. The order of detention dated 31.8.1999, copy annexure P-5 passed by the detaining authority and the subsequent orders passed by the State Government dated 3.12.1999 and the Central Government dated 18.11.1999 confirming the order of detention are quashed. If the petitioner is not required to be detained in custody in any other criminal case, including FIR No. 24 dated 4.4.1998 under Section 18 of the NDPS Act of PS Goindwal Sahib, the petitioner shall be released from custody forthwith.