GURMEJ SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This second petition under Articles 226/227 of the Constitution of India, relates to quashment of the order of detention of the petitioner passed by the respondent State, Annexure P-1, dated 9-7-1987, under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act), grounds of detention Annexure P-1(A) and confirmation order dated 22-11-1988, Annexure P-2.

(2.) Facts relevant for the disposal of this petition are that the petitioner was arrested by Border Security Force near the police picket of village -Bharowala, District Amritsar, on 23rd May, 1986 and gold biscuits numbering 100 were recovered from his possession. FIR No. 123 under section 411/414, IPC was registered against the petitioner at Police Station Gharinda. During the investigation he also gave details concerning modus operandi of the smuggling activities carried on by him along with other persons including a Pakistani national. The petitioner was subsequently enlarged on bail by the trial Court. Thereafter the State Government passed order of detention against the petitioner under Section 3(1) of the COFEPOSA Act on 3rd July, 1987 and the same was served on the petitioner on 23rd May, 1988. Since then the petitioner is under detention. It was next pleaded that the petitioner challenged the detention order on same other grounds through Criminal Writ Petition No. 1625 of 1988 which was dismissed on November 21, 1988. The impugned orders of detention/confirmation have been challenged firstly on the ground that the fact that the detenu was released on bail by the trial Court and other material including recovery memos placed before the detaining authority were pot considered by it for its subjective satisfaction before passing the impugned order of detention. Nor, such documents were supplied to the petitioner, in order to make any effective representation; secondly, that the representation made by the petitioner to the respondent State was not decided within reasonable time. There was undue delay of 289 days in considering the reply of the District Magistrate, and, that the impugned order of detention is liable to be quashed.

(3.) The State in its reply raised preliminary objection that the petition is not maintainable in the present from inasmuch as Criminal Writ Petition No. 1625 of 1988 moved earlier by the petitioner for quashing the impugned detention order on similar grounds was dismissed by A. P. Chowdhri J, on 21st November, 1988. On merits, it was admitted that the petitioner was arrested in case FIR No. 123 and remained in police custody" and later on released on bail. It was, however, pleaded that after the detention order was issued the petitioner went underground to evade execution of the detention order. The petitioner was apprehended on 23rd May, 1988. As there was likelihood of the petitioner being arrested at any time, so there was no necessity for taking action under Section 7 of the COFEPOSA Act, and, for moving for cancellation of the bail. It was also pleaded that the order is preventive and not punitive and the delay in execution of the detention order was caused by the petitioner who went underground to evade the execution of the detention order. It was also pleaded that the representation of the petitioner was dealt with promptness and the rejection thereof was duly conveyed to the petitioner. It was further pleaded that the representation of the petitioner was received by the Superintendent, Central Jail, Patiala, on December 1, 1988 and the same was received by the Home Secretary to Government of Punjab on 2nd December, 1988. 3rd and 4th December, being holidays, parawise comments were called from the District authorities on 5th December, 1989 and the comments of Senior Superintendent of Police, Amritsar were received by the District Magistrate, Amritsar, on 19th December, 1988 and the same were received by the Secretary Home on 23rd December, 1988. The representation was processed and dealt with at various levels on 26 12.88 and 27.12.1989, and the same was ultimately rejected after due consideration by the competent authority on 28.12. 1988. Rejection of the representation was duly conveyed to the petitioner through Superintendent, Central Jail, Patiala on 22nd January, 1988. It was further pleaded that the detaining authority was conscious at the time of passing the impugned order of detention that the petitioner was on bail. All relevant material was placed before the detaining authority, who arrived at his subjective satisfaction after duly considering all the relevant material before passing order of detention. All copies of the supporting material including copies of the recovery memos was supplied to the petitioner against proper receipt. Other averments in the petition were denied.