GURNAM SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) In this Habeas Corpus petition, the order of detention dated 8th March 1991 (Annexure P-1) under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the Act) has been challenged by the petitioner, Gurnam Singh. The grounds of detention (Annexure P-2) annexed with the detention order are to the effect that on Sept., 1, 1990, the petitioner alongwith Karamjit Singh entered into conspiracy to smuggle gold from Kabul. In pursuance of the conspiracy, they smuggled gold on 15th of July, 1990 and 5th of August, 1990. Both of them visited Kabul on August 26th, 1990 and each of them smuggled two gold biscuits of foreign mark weighing 233.280gms of 24 Cts. purity valued at Rs. 75,816.00 as they arrived at Raja Sansi Airport from Kabul through International flight No. FG 386 on September 1, 1990. It is alleged that on account of these activities it became necessary to pass the impugned detention order against the petitioner. Admittedly a similar detention order on identical ground was passed against Karamjit Singh, co-accused of the petitioner as both of them had jointly indulged in activities of smuggling from Kabul of India. However, on the recommendations of the Advisory Board, Karamjit Singh, was released vide an order of the State Government dated March 28, 1992 (Annexure P-5). The detention order against the petitioner was confirmed by the State Government on April 2, 1992 (Annexure P-4) after the receipt of the recommendations of the Advisory Board.

(2.) The petitioner filed representation (Annexure P-3) on February 1, i992 but the same was rejected on February 28, 1992 on merits.

(3.) It is contended on behalf of the petitioner that it was incumbent on the government to have brought to the notice of the detaining authority the order regarding revocation of detention order against Karamjit Singh and since this was not done, prejudice was caused to the petitioner and on this ground the detention order passed against him is vitiated. In support of his contention learned counsel for the detenu-petitioner has drawn my attention towards ground of detention AnnexureP2 and reply filed on behalf of the State with particular reference to para Nos. 6 and 6(vi) thereof respectively wherefrom it is evident that the petitioner and his co-accused Karamjit Singh had come from Kabul through International Flight No. FG-386 and landed at Raja Sansi Airport on 1/9/1990 and two gold biscuits of foreign origin and of 24 Cts. purity weighing 233.280 gms and valued at Rs. 75,8i6/- were recovered from each of them. This submission is well founded and must be accepted. It is not controverted, rather admitted on behalf of the State vide para No. 6(vi) of the reply that when the detention of the petitioner was confirmed on 2/4/1992 (Annexure P-4), the order of detention of Karamjit Singh, co-accused of the petitioner had already been revoked vide order dated 28.3.1992 (Annexure P-5) on the recommendations of the Advisory Board. It is also not disputed that initially the petitioner as well as his co-accused Karamjit Singh had been detained on identical grounds. It is also the case of the State that the petitioner and Karamjit singh, his co-accused, had participated together in smuggling activities. Under the circumstances, it was expedient that the order of revocation of the detention passed against Karamjit Singh ought to have been considered by the detaining authority while confirming the order of detention passed against the petitioner. Had the revocation order of detention of Karamjit Singh been placed before the detaining authority it could have influenced its mind one way or the other anti therefore, it can well be said that there was non-application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the confirmation order dated 2/4/1992 (Annexure P4 in-valid anti illegal. In an identical situation in Santosh Kumar v. State of V.P. and another, Allahabad High Court relying on the ratio laid down in Mohd. Shake Vahid Ahmed v. State of Maharashtra, had held as under: