V.K.JHANJI,J - (1.) THE present petition has been filed by the petitioner, who is presently confined in Central Jail, Patiala, under Article 226 of the Constitution of India for quashing Detention Order No. 1/90-93-3HIII (COFEPOSA)/1347 dated 5.11.1993 (Annexure P-1), Grounds of Detention dated 5.11.1993 (Annexure P-1/A) and confirmation order dated 22.2.1994 (Annexure P-2) passed by respondent No. 1 against the petitioner.
(2.) IN brief, the facts are that on the basis of specific information recorded by the Officers of the Customs Department that one Ranjit Singh Rana son of Veer Singh, resident of village Naushehra, District Amritsar, had in his possession or control one hundred gold biscuits bearing foreign markings, surveillance was kept on him. On 17.3.1993, in the evening, when he was about to enter his farm-house, he was apprehended and escorted to Custom House, Amritsar. On persistent enquiry, he admitted that he had transported one hundred gold biscuits from Pathankot which have been concealed by him, and are in the house of the petitioner since 28.2.1993. Therefore, the officers of the Customs Department kept surveillance at the house of the petitioner, namely House No. 9, Vikas Colony, Amritsar, and ultimately, on 18.3.1993, after obtaining search warrant, carried out search in the house of the petitioner in the presence of two independent witnesses and recovered one hundred gold biscuit kept in two gray cotton bandoliers from the back-rest of the bed of the petitioner. In this case, petitioner was arrested under Section 104(1) of the Customs Act, 1962, (in short, 1962 Act). The petitioner was granted bail by this Court on 26.7.1993. Petitioner was detained on 17.11.1993 and was served with detention order dated 5.11.1993, which is as follows :- "GOVERNMENT OF PUNJAB DEPARTMENT OF HOME AFFAIRS AND JUSTICE (HOME - III BRANCH) ORDER ........... No. : 1/90/93-3HIII (COFEPOSA)/1347. Dated : 5.11.193 Whereas the Governor of Punjab is satisfied that you Sakattar Singh, son of Shri Kehar Singh, R/o 9, Vikas Colony, Amritsar, have been engaging in concealing and keeping the smuggled goods and, therefore, it is necessary to make an order directing that you Sakattar Singh be detained with a view to preventing you from indulging in the above-mentioned prejudicial activities in future. 2. Now, therefore, 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, 1971 (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 Sakattar 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/- Under Secretary, Home. To Sakattar Singh s/o Shri Kehar Singh R/o 9, Vikas Colony, Amritsar. The Advisory Board in its meeting held on 31.1.1994, opined that there is sufficient cause to continue the detention of the petitioner. 3. In the present petition, the following grounds/contentions have been taken and urged for quashing of detention of the petitioner : (1) That the events mentioned in the grounds of detention date back as 18.3.1993, whereas detention order has been passed on 5.11.1993, i.e. eight months from the event mentioned in the grounds of detention and, therefore, the inordinate delay of about eight months in framing the grounds of detention, renders the detention illegal. (2) That the detention order has been passed without application of mind, which is clear from the fact that the petitioner was released on bail on 26.7.1993, whereas order of detention has been passed three months thereafter and it is mentioned in the detention order that the petitioner is in judicial custody. The very fact that the petitioner, at the time when detention order was passed, was on bail shows that the detaining Authority has passed the order without looking into this vital fact of grant of bail. (3) That the detaining Authority while passing the detention order, has not taken into consideration the grounds on the basis of which petitioner was allowed bail. (4) That complaint under Section 135 of the 1962 Act was filed against the petitioner on 27.7.93 whereas order of detention was passed on 5.11.1993, i.e. after more than three months of filing of the complaint. No cogent explanation for delay in passing the detention order is forthcoming. (5) That the order of confirmation of detention has not been passed within there months of the commencement of the detention and therefore, further detention after expiry of three months is illegal. According to the petitioner, he was detained on 17.11.1993. The Advisory Board in its meeting dated 31.1.1994 opined for the continuance of detention of the petitioner, whereas confirmation order has been passed by the Detaining Authority on 22.2.1994, i.e. three months and 5 days after the petitioner was detained. In support of the first and second contentions, the learned counsel for the petitioner has placed reliance upon the judgments of the Supreme Court in Rabindra Kumar Ghosal v. State of West Bengal, AIR 1975 SC 1408, Jagan Nath Biswas v. State of West Bengal, AIR 1975 SC 1516 and Sk. Serajul v. State of West Bengal, AIR 1975 SC 1517. In support of his third contention, counsel placed reliance upon a judgment of the Supreme Court in P.U. Abdul Rahiman v. Union of India and others, 1991(1) RCR 589. In support of his fourth contention, counsel has placed reliance upon judgment in Inder Kumar v. Union of India and another, 1991(1) Chandigarh Criminal Cases 24. (HC), and in support of his fifth contention, counsel placed reliance upon judgments of Supreme Court in Shibapada v. State of West Bengal, AIR 1972 SC 1356, and Nirmal Kumar Khandelwal v. The Union of India and others, AIR 1978 SC 1155.
(3.) IN response to notice of the petition, reply has been filed on behalf of respondent No. 1 by Ms. Amrita Atwal, Deputy Secretary Home, Punjab, Department of Home Affairs and Justice, Chandigarh, in which it has been stated but detention order against the petitioner is not liable to be quashed on the grounds on the basis of which it is being sought to be quashed. In reply to ground No. 5, respondent No. 1 has admitted that the detention order was passed on 17.11.1993 and confirmation order was issued on 22.2.1994. However, it has further been stated that "in view of section 8(f) of the COFEPOSA Act where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of the person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. Therefore, the interpretation of said section as given by the petitioner is wrong and not admitted. In fact there in no limitation prescribed during which the detention period is to be fixed after confirmation of the detention.";