J.S.SEKHON, J. - (1.) ABDUL Sattar detenu, a national of Pakistan, through this writ petition has challanged the detention order Annexure P-1 passed by the Under Secretary to the Government, Punjab, Home Department on 29.5.1989 under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short called the Act) with a view to preventing him from engaging in concealing, transporting and importing into India Narcotic Drugs. The detenu was already in custody in violation or the provisions of Import Trade Control Order No. 17/55 dated 7-12-1955, as amended, and issued under section 3(1) of the Import and Export Control Act, 1947 read with sections 11 and 77 of the Customs Act, 1967 and section 3 of Narcotic Drugs and Psychotropic Substances Act, 1988. The detension order along with the grounds of detention was served upon the detenu in the jail on 18-7-1989.
(2.) A brief resume of relevant facts figuring in the grounds of detention Annexure P. 2 served upon the petitioner is that on 18-12-1988, the petitioner alighted from Pakistan at Attari Railway Station from 208 Dn. Train. The petitioner declared before the Customs authorities that he was not carrying any gold, watches or any other contraband goods. The petitioner was then carrying two bags. The nervousness of the petitioner at the time of declaration before the Customs authorities aroused suspicion and resulted in searching the bags thoroughly in the presence of two independent witnesses. As a result of the search the following items were recovered from bags: 1. Textiles 80 mtrs. of foreign origin of value = Rs. 1600/ 2. Pista 5 kgs. of value = Rs. 1000/- 3. L.B. Shirts 40 Nos. of value = Rs. 600/ 4. Two bags used as containers = Rs. 100/- Besides, the above referred articles, two tins of Talcum Powder were found concealed in two packets of pista in one bag and one tine of Talcum Powder concealed in the textile in the second bag. As these empty bags weighed slightly more than the normal, their base were cut and it was found that these bags had false bottoms made by joining two pieces of plywood by screws. From these false bottoms two polythene packets containing heroin were recovered. From these packets and from the three Talcum Powder tins, 1860 gms of heroin was recovered. All these articles were taken into possession under section 110 of the Customs Act after drawing samples therefrom. The sample was found to be Heroin by the Chemical Examiner. During interrogation by the Customs authorities, the detenu admitted that these goods were given to him by his friend Ghulam Rasool on that very day. Aforesaid Ghulam. Rasool also admitted the concealment and recovery of Heroin from his possession. On further interrogation, the detenu admitted that these goods belonged to one Mr. Hassan who lives at Karachi and that he and Ghulam Rasool were to hand over these goods to Abul Bhai and Gold Hotel, Radio Club, Coloba, Bombay and in return he was to get Rs. 2000/-. Under these circumstances with a view to curb the future propensity of the petitioner in dealing in such like prejudicial activities, the order of detention was passed. The petitioner had taken many grounds in the writ petition, but during the course of arguments, the learned counsel for the petitioner had contended that the grounds of detention being verbatim copy of the dossier submitted by the Sponsoring Authority clearly shows that the detaining authority had failed to apply its mind to the facts and circumstances of the case. The petitioner has made averments in this regard in para 9 of the writ petiton. In the return filed by Shri S. K. Bhalla, Under Secretary to Government, Punjab on behalf of the respondents in corresponding para 9, these allegations are refuted. On the other hand, it was maintained that the grounds of detention were prepared by the detaining authority with due application of mind and on the basis of his subjective satisfaction. It was further stated that as the material is to be taken from the documents supplied by the sponsoring authority, there is always some similarity in the two.
(3.) I have gone through the original file of the sponsoring authority. A perusal of the file reveals that vide letter No. C. No. VIII (HQRS) PREV/PD/NDPS/6/88/627 dated 8.3.1989 written by the Customs and Central Excise Collectorate, Chandigarh to the Home Secretary, Punjab Government, Chandigarh, the proposal for detention under section 3(1) of the Act against Abdul Sattar son of Amir Khan of Karachi alongwith the grounds of detention and documents mentioned therein was sent. A perusal of the proposed grounds of detention leaves no doubt that except for in para No. 1, the parentage of Abdul Sattar is missing in the proposed grounds of detention, the other grounds of detention served upon the petitioner are verbatim copy of the proposed grounds of detention. In para No. 1 parentage of Abdul Sattar is not mentioned but the same is mentioned in the grounds served upon the petitioner. The matter does not rest here as towards the end of proposed grounds of detention, the sponsoring authority has not mentioned its own name but has mentioned the detaining authority as Under Secretary to Government, Punjab, Home Department. Thus, there is no escape but to conclude that it is a clear case of non application of mind by the detaining authority to the facts and cicumstances of the case and thus, it cannot be said that the order of detention was passed after due application of mind and on the subjective satisfaction of the detaining authority.;