G.S.CHAHAL, J. - (1.) AJAIB Singh-petitioner has come to this Court in this petition under Articles 226/227 of the Constitution of India and seeks quashing of order dated August 19, 1988 passed by Administrator, Union Territory, Delhi, under Section 3(1) of COFEPOSA Act, 1974. This order is claimed to be illegal. Since the same has not so far been served on the petitioner it is prayed that a direction be issued restraining the authorities from arresting him.
(2.) THE petitioner claims that he is a permanent resident of village Libra, Distt. Ludhiana, within the jurisdiction of this Court. The Custom Officials raided his premises on 25th May 1988 and 2nd June 1988 at his village but nothing incriminating was recovered; that the petitioner has been involved falsely for ulterior motives; that on 23.4.1988, the police officers of Babugarh Police Station, District Ghaziabad, (U.P.) at the UP-Delhi Border intercepted two trucks bearing Nos. HYO 7141 and HYQ 2297. These trucks were found to be carrying polyester synthetic yarn allegedly of foreign origin. On the basis of the information sent by the police, the D.R.I. officers reached at the spot and took custody of the trucks and the yarn. The trucks were taken by the D.R.I. to their office in Delhi where the trucks were searched and a Panchnama was drawn. The Panchnama showed the seizure of documents which are as under :- (i) Registration books of both the trucks. The registration book of truck No. HYO 7141 showed that it was owned by Shri Karamjit Singh s/o Shri Hukum Singh r/o H.No. 155, New Colony, Palwal, Haryana and the registration book of truck No. HYQ 2297 showed that the owner was Shri Gurmeet Singh s/o Shri Hardian Singh r/o Mohan Nagar, Kurukshetra, Haryana. (ii) One bilty No. 576 dated 21.4.1988 issued by Yadav Roadlines, Gorakhpur showing the name of the consignee as M/s Radharam Sitaram, Rohtak, Haryana. (iii) Bilty No. 361 dated 21.4.1988 issued by M/s. Har Bhagwan Dass and Sons, Gorakhpur showing the consignee's name as M/s Radharam Sitaram, Rohtak. (iv) Challan No. 196 dated 21.4.1988 issued by Yadav Roadlines, Gorakhpur. (v) Driving licence of driver Kulwant Singh who was arrested in this case from truck No. HYO 7141. (vi) Photocopy of memo dated 5.10.1987 issued by the Vacation Judge, Coochbehar in Criminal case No. 338/87 Angrez Singh and Gurdian Singh v. State . (vii) Photocopy of order by Sessions Judge for release of Prisoner on bail in criminal case No. 338/87 in the Court of Vacation Judge, Coochbehar. That these documents clearly showed that neither the trucks were not owned by the petitioner he was neither the consignor of the goods nor the consignee nor there was any paper to connect the trucks or the goods with the petitioner or with M/s Patiala Transport Company to which the petitioner was a partner, that the D.R.I. did not make any investigation from the owners of the trucks or the consignors and consignees whose addresses have become known to them; that Sarv Shri Shiv Ram Sharma, Manager, Patiala Transport Company and Nihal Singh, driver of the petitioner were summoned to Babugarh Police Station on the pretext that some truck of Patiala Transport Company had been detained at the U.P. Delhi border for some traffic violations. Both of them along with Kulwant Singh driver of truck No. HYO 7141 and Baldeep Singh who was an outsider but had taken lift in truck No. HYQ 2297 were taken to the office at Lodhi Road Complex and they were detained overnight and their confessional statements were extorted under all types of mental and physical tortures. Kulwant Singh, Shiv Ram Sharma and Nihal Singh were made to say that the seized trucks were attached to Patiala Transport Company. Kulwant Singh was arrested and produced before Additional Chief Metropolitan Magistrate, New Delhi on 24.4.1988 where he retracted his confessional statement. A copy of the retraction petition is Annexure P-1. The D.R.I. knew that the seized trucks have nothing to do with the Patiala Transport Company and made absolutely no investigations at the office of the said Company to look into the records so as to connect the trucks with the company. They wanted to make out a false case on the basis of the statement of Kulwant Singh who was an uneducated person and a young boy of less than 18 years. The D.R.I. officers took the petitioner to their office where he was man-handled and physically assaulted and was forced to write a statement as dictated by those officers. He was neither allowed to inform his relatives nor allowed to call a doctor though he was an old man suffering from various ailments. The petitioner was produced before the Addl. Chief Metropolitan Magistrate, New Delhi, where he retracted his confessional statement while moving a bail application. That on the basis of the alleged confessional statement COFEPOSA detention was proposed against six persons including the petitioner. Apprehending his detention under the COFEPOSA the petitioner moved the Calcutta High Court and that Court was pleased to grant a stay order on 19th August 1988. That since the petitioner has been unable to attend that Court on account of his old age and sickness, he has withdrawn that petition.
(3.) THE order of detention has been challenged on the basis (a) that the detention order of Kulwant Singh driver had been revoked by the Delhi Administration on the basis of advice of COFEPOSA Advisory Board. The copy of the revocation order is Annexure P-2. The detention of Bhavensh Kumar alias Pappu who was alleged to be a joint owner of the synthetic yarn was revoked by the Delhi Administration after reconsidering his case and a copy of the order is Annexure P-3. The detention order of Ramesh Kumar was quashed by the Delhi High Court and in view of these revocations of detention orders of Kulwant Singh and Bhavenesh Kumar and the quashing of the order against Ramesh Kumar, the order passed against the petitioner was discriminatory and has been passed in order to harass and humiliate him (b) the alleged prejudicial activity is dated 23.4.1988 and the order of detention was passed on 19th August 1988 and there was no explanation for the delay in passing of the order and there was no nexus between the alleged prejudicial activity and the order of detention; that petitioner had been allowed bail in May 1988 and there is no allegation that while on bail he indulged in any prejudicial activity (c) that there was no allegation of any prejudicial activity on the part of the petitioner at any earlier stage and it was a case of single prejudicial activity and the order was not justified (d) Kulwant Singh had retracted from his statement and that statement was a vital document which has not been taken into consideration by the detaining authority. Had this document been taken into consideration, the authority would not have passed the detaining order; (e) there was no evidence to connect the trucks with the petitioner; (f) there was no evidence to show that the seized Synthetic Yarn was in fact of foreign origin; (g) that since the alleged incident is now more than 5 years old and the petitioner is an old and sick person leading a retired life, no purpose contemplated by COFEPOSA can be served by detaining the petitioner.;