S.S.GREWAL, J. - (1.) THIS petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') relates to quashment of detention order dated 8.4.1993 (Annexure P-1) passed against the petitioner for engaging in concealing smuggled goods, in exercise of the powers conferred by Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA with a view to prevent the petitioner from indulging in said prejudicial activities in future.
(2.) ACCORDING to the petitioner, he was arrested on 23.7.1992 under Section 104(1) of the Customs Act, 1962 by the Customs Authorities. Thereafter, he was tortured and his thumb impressions were obtained on some plain papers which were later on used for his alleged confessional statement on the basis whereof detention order was passed, even though, the petitioner was released on bail on 25th July, 1992 by the Ilaqa Magistrate, Batala. It was further pleaded that from the date the petitioner was released on bail till the impugned detention order was passed, the petitioner did not indulge in any prejudicial activity; that there is no likelihood of the petitioner indulging in criminal acts of smuggling and that the impugned detention order dated 8.4.1993 was passed by the detaining authority on the basis of the alleged confessional statement of the petitioner without any subjective satisfaction. It was next pleaded that the petitioner has neither been served with the detention order nor with the ground of detention or report/proposal prepared by the sponsoring authority and as such the impugned order of detention passed against the petitioner is illegal; that just to make the retraction ineffective the Customs Authorities again summoned the petitioner on 23.9.1992 and asked him to make a statement to the effect that his previous statement made on 23.7.1992 was correct. The petitioner sent representation to the Collector of Customs, Chandigarh on 24.9.1992 that his statement dated 23.9.1992 was not a voluntary statement and was obtained under threats. It was further pleaded that the detention order has been passed for extraneous reasons and for wrongful purpose i.e. detention of the petitioner in jail inspite of the fact that he had already been released on bail under the orders of the Court and had not indulged in any prejudicial activity; that the order of detention is neither bonafide nor of a preventive nature as contemplated by COFEPOSE Act and that order of detention, was passed to circumvent the judicial process, in order to keep the petitioner in custody after he had been granted bail by the trial Magistrate and the said order is punitive in nature. It was next pleaded that the impugned order of detention was passed after the alleged recovery of 7 gold biscuits on 23.7.1992 i.e. after 8 months and the impugned order of detention is vitiated on the ground of lack of promptitude and unexplained delay between the prejudicial activities and passing of the impugned orders, which shows that the detaining authority had not applied its mind while framing grounds of detention and copies them from the grounds of detention already prepared by the Customs Authorities. This further shows lack of subjective satisfaction on the part of the detaining authority. It was next pleaded that the detaining authority did not consider the telegrams sent by the wife of the petitioner and the retracted confession made through the representation by the petitioner on 24.9.1992. It was also asserted that the impugned order of detention and grounds of detention are illegal vague, arbitrary, contrary to the well-settled proposition of law and are liable to be quashed. In reply the respondents took preliminary objection that the impugned detention order dated 8.4.1993 has not been served on the petitioner and the present petition was liable to be dismissed as premature. Most of the allegations made by the petitioner were denied except that the petitioner after his arrest on 24.7.1992 was released on bail by the Ilaqa Magistrate on 25.7.1992. It was pleaded that the petitioner voluntarily made confessional statement and that the petitioner used to sign his statements and not to affix his thumb impressions. Other averments of the petitioner that he was tortured or that his thumb impressions on the blank papers were obtained and later on used for his confessional statement were specifically denied by the respondents. The allegations now made by the petitioner are clearly an after thought and devoid of truth. It was next pleaded that the anti-social elements like the petitioners cannot be given a licence to indulge in smuggling of gold and play havoc with the society and as such his personal liberty cannot be allowed to the detriment of the public at large and the impugned order of detention has been rightly passed in accordance with letter and spirit of the preventive law and that the grant of bail was not the sole factor in forming an opinion regarding the detention of the petitioner, who was indulging in smuggling activities. It was submitted that the detaining authority was subjectively satisfied that the petitioner, if not detained was likely even in future to indulge in prejudicial activities in view of his prima facie propensities towards such like activities. It was asserted that grounds of detention were prepared by the detaining authority with due application of mind and on the basis of subjective satisfaction and not on the basis of confessional statement of the petitioner and that the petitioner is intentionally evading the execution of the detention order in spite of the fact that strenuous efforts were made to serve the petitioner with the detention order and grounds of detention. It was also pleaded that the representation of the petitioner dated 29.7.1992 was made after a gap of 4 days from the date of effecting seizure of 7 gold biscuits and the same is an after-thought. The representation was found to be baseless after thorough scrutiny. The petitioner made voluntary statement on 23.9.92 under Section 108 of the Customs Act, 1962 in presence of Superintendent Customs at Pathankot and retraction was made with a view to escape the clutches of law. It was denied that the petitioner made his statement dated 23.7.1992 under duress. Rather it was pleaded that the said confessional statement was voluntary. Receipt of any telegram from the petitioner or his wife was denied nor the contents thereof were communicated to the respondents by the Governor of Punjab. It was pleaded that the impugned detention order is bonafide and is of a preventive nature as contemplated by the COFEPOSA Act. It was further pleaded that there is no mechanical test for counting the period/interval between the criminal activity and order of detention contemplated under the COFEPOSA Act; that the detention of the petitioner is valid as the proposal for detention has been sponsored on 11.1.1993 by the sponsoring authority to the State Government. The same was received in the office of the Secretary to Government of Punjab, Department of Home Affairs and Justice, Civil Secretariat, Chandigarh (hereinafter referred to as the Secretary) on 14.1.1993. After examining the proposal by the local agency on 15.1.1993 some additional information was called from the sponsoring authority vide letter dated 21.1.1993. Meanwhile the case was further examined and original grounds of detention in Hindi were translated into English. It was quite voluminous and consumed sufficiently long time. The case was again examined on 22.2.1993 by the legal agency in the light of information received from the Sponsoring authority vide letter dated 17.2.1993 in the office of the Secretary on 18.2.1993. Information sent by the sponsoring authority vide letter dated 12.3.1993 was again considered in the office of the Secretary and after examination by the legal agency on 17.3.1993 proposal for passing of detention order was sent to the State Law Department where it remained under examination. Ultimately after consideration of the material on the record, the impugned order of detention was passed by the competent authority on 8.4.1993. It was next pleaded that there was a close nexus between the prejudicial activity indulged in by the petitioner and the detention order as the case remained under processing during this period; that the impugned order of detention is valid in law as it had been made to prevent the petitioner from indulging in smuggling activities which are prejudicial to the interest of the State. The detaining authority passed the impugned order of detention without any delay on the material on the record and with application of mind and on the basis of its subjective satisfaction. The said order is bonafide, preventive in nature as contemplated by the COFEPOSA Act. It was further pleaded that the petitioner is on bail and is playing hide and seek with the police and intentionally evading the execution of detention order. Application for cancellation of the bail granted to the petitioner was submitted in the trial Court but the same was dismissed. It was denied that the grounds of detention were copies from the grounds supplied by the sponsoring authority and it was further pleaded that the grounds of detention are valid. Thus the detention of the petitioner is very much genuine keeping into consideration his involvement in nefarious activity of smuggling gold. The said involvement was even admitted by him in his voluntary statement made on 23.7.1992 and 25.7.1992. It was next pleaded that there was sufficient material with the sponsoring authority for detention of the petitioner and the detention order was passed by the competent authority after taking into consideration the recovery of gold from the possession of the petitioner and his confessional statement. Thus the order of detention is legal. It was also pleaded that the detention order was within time as there is complete proximity between the prejudicial activity and the grounds mentioned in the detention order.
(3.) THE learned counsel for the parties were heard.;