V.K.JHANJI,J - (1.) THE present petition under Article 226 of the Constitution of India, has been filed for issuance of a writ in the nature of Certiorari for quashing detention order No.1/16/94-3HIII-(COFEPOSA)/278 dated 11-2-1994 (Annexure P-1) and grounds of detention dated 11.2.1994 passed by respondents No.1 against the petitioner.
(2.) IN brief, the facts as stated in the petition are that the petitioner, who is resident of village Varpal District Amritsar, was arrested on 22.8.1993 under Section 104(1) of the Customs Act, 1962 (in short, The Act) by the Customs Authorities. While the petitioner was in judicial custody, he was served with the following detention order along with grounds of detention :- " GOVERNMENT OF PUNJAB DEPARTMENT OF HOME AFFAIRS AND JUSTICE (HOME -III BRANCH ) ORDER No. : 1/16/94-3HIII (COFEPOSA)/278 dated :11.2.94. Whereas the Governor of Punjab is satisfied that you Anoop Singh s/o Shri Ghulla Singh, R/o Village and Post Office Varpal, Distt. Amritsar, Police Station Jandiala, have been engaging in transporting and concealing smuggled goods and, therefore, it is necessary to make an order directing you (Anoop Singh ) be detained in a view to preventing you from indulging in the above mentioned prejudicial activities in future. 2. Now, therefore, in exercise of the powers conferred but the Sub-Section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Parliament Act No. 52 of 1974). The Governor of Punjab while being conscious of the act that you are in judicial custody is pleased to direct that you Anoop Singh be detained. You have a right to make representation in writing against the order under which you are being detained. If you wish to make such representation, you should address it to the State Government through the Superintendent of Jail as soon as possible. Sd/- Deputy Secretary (Home), To Anoop Singh s/o Sh. Ghulla Singh, R/o Village and Post Office Varpal, Distt. Amritsar, Police Station : Jandiala. The detention order and the grounds of detention are being impugned in this petition, mainly on three grounds namely :- (1) That the events mentioned in the grounds of detention date back as 22.8.1993 and the order of detention is dated 11.2.1994, i.e. six months after the event mentioned in the grounds of detention, and therefore detention order is liable to be quashed; (2) That the detaining Authority has not applied its mind while framing the grounds of detention, but had copied them from the grounds taken in the Dossier prepared by the Customs Authorities; and (3) That the petitioner, after detention, submitted a representation to the detaining Authority through the Superintendent Central Jail, Amritsar, for the revocation of the detention, and the representation was addressed to the detaining Authority and it was requested in the end of the representation that a copy of the representation be forwarded to the Central Government, i.e. respondent No.3, but it has not decided the said representation, nor has conveyed any decision on the representation forwarded by the petitioner. 3. Notice of the petition was given to the respondents. Respondents No.1 and 2 have filed written statements, whereas respondent No.3 has filed a counter affidavit. In the written statement and the counter affidavit, the respondents have denied the averments made in the petition and stated that the detention orders are not liable to be quashed on any of the grounds mentioned in the petition. Respondent No. 1 in the written statement has given the details and the dates during which proceedings of the detention proposal were processed and order ultimately was passed after consideration of the material on record. Respondents have further denied that the detention order suffers from non- application of mind. As regards ground No. 3, respondent No.1 in the written statement has admitted that the petitioner submitted a representation through the Superintendent, Central Jail, Amritsar, which was addressed to the detaining Authority and it was requested in the end that a copy of the same be forwarded to the Central Government. In this very affidavit/written statement, respondent No.1 has further admitted that the detaining Authority forwarded the copy of the representation to the Central Government, whereas in the counter affidavit on behalf of Union of India (respondent No.3), it has been stated that no representation whatsoever from or on behalf of the detenu was received in the COFEPOSA unit of the Ministry and hence, question of considering the same does not arise. The Superintendent, Central Jail, Amritsar, in his written statement has stated that the representation of the petitioner was forwarded promptly to the State Government for consideration.
(3.) WHEN the matter initially came up for hearing on 14.7.1994, finding contradiction in the written statement filed by the respondents with regard to forwarding of representation of the petitioner to the Central Government, a direction was issued to the concerned respondents to file an affidavit for clarifying as to when and how the representation was sent to the Central Government and who received the representation on behalf of the Central Government. In pursuance of order dated 14.7.1994, Ms.Amrita Atwal, Deputy Secretary, Home, Punjab, Department of Home Affairs and Justice, Chandigarh, has filed an affidavit dated 25.7.1994, in which it has been stated that it was wrongly mentioned in the original written statement that representation was forwarded to the Central Government, whereas the same has not been forwarded. She has further stated that "the word 'not' in between words has and forwarded was inadvertently missed during tying and there was no intention on the part of the answering respondent for mis-statement. Omission is deeply regretted". In view of this additional affidavit, it now stands admitted by respondent No.1 that representation was received in which a request was received from the petitioner that copy of his representation be forwarded to the Central Government. Learned counsel for the petitioner has contended that order of detention is liable to be quashed on all grounds taken in the petition. Mainly, he relied upon the third argument and in support of the same, he has placed reliance upon a judgment of the Supreme Court in Rattan Singh and another v. State of Punjab and others, AIR 1982 SC 1.;