NIRMAL YADAV,J - (1.) THROUGH this Criminal Writ Petition under Articles 226/227 of the Constitution of India, the detenu Paramjit Singh @ Pamma, who is presently detained in Central Jail, Bathinda, has challenged the order of detention dated 10.11.2005 (annexure P-1) passed by Secretary to Government of Punjab, Department of Home Affairs & Justice, Chandigarh, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the COFEPOSA') being illegal and abuse of process of law, with a further prayer to release him from illegal detention. The order of detention was passed on the ground that the Secretary to Government of Punjab, was satisfied that the detenu Paramjit Singh had been abetting the smuggling of goods, therefore, it was necessary that he be detained with a view to prevent him from indulging in aforementioned activities in future. The grounds of detention were also supplied to the detenu with the impugned order. The detenu submitted representation (Annexure P-9) against the impugned order on 1.12.2005, to the Government of India as well as to the Punjab Government which were rejected vide order dated 7.2.2006 (Annexure R-3) by the Punjab Government and vide order dated 6.2.2006 (Annexure R-4) by the Central Government.
(2.) BEFORE adverting to the arguments raised by learned counsel for the petitioner, I would like to reproduce the relevant portion of grounds of detention, which read as under :- "You remained involved in smuggling/criminal activities in connivance of Pak smugglers during the last three decades. A large quantity of smuggled articles like gold, narcotics and arms/ammunition were recovered from your possession during your criminal career as a result of which following cases were registered against you :- (1) FIR No. 130 dated 11.3.1973 u/s 307 IPC, 25 Arms Act, 3/12/15 I.P. Act, 123 Custom Act, PS Lopoke, Police District Majitha. (2) FIR No. 185 dated 23.5.1976 u/s 3 Official Secret Act, 42/43 DIR PS Division No. C, Amritsar. (3) FIR No. 99, dated 16.4.1976 u/s 302/364/365/148/149/120-B IPC PS Gharinda, district Amritsar. (4) FIR No. 189, dated 15.7.1976 u/s 307 IPC, 25 Arms Act, PS Lopoke, PD Majitha. (5) FIR No. 380, dated 20.6.1978 u/s 9/1/78 OP Act, PS Sadar, Amritsar. (6) FIR No. 179, dated 20.5.1979 u/s 9/1/78 OP Act, P.S. Lopoke, PD Majitha. (7) FIR No. 180, dated 20.5.1979, u/s 25 Arms Act, PS Lopoke, PD Majitha. (8) FIR No. 66, dated 18.2.1986, u/s 61/1/14 Excise Act, PS Lopoke, PD Majitha. (9) FIR No. 198, dated 17.7.1986, u/s 25 Arms Act, PS Lopoke, PD Majitha. (10) FIR No. 45 dated 28.2.1989 u/s 411/414 IPC, 25 Arms Act, 18/61/85 NDPS Act, TDP Act, PS Civil Lines, Amritsar. (11) FIR No. 7 dated 23.1.1991 IPC, IP Act, F Act 3 OS Act, 18/61/85 NDPS Act, Arms Act, PS Lopoke, PD Majitha. (12) FIR No. 122 dated 10.12.1994, IPC 25 Arms Act, 3 OS Act, 18/61/85 NDPS Act, PS Lopoke, PD Majitha. (13) FIR No. 163 dated 9.8.1995, u/s 411/414 IPC, 25 Arms Act, 18/61/85 NDPS Act, 3 OS Act, PS Lopoke, PD Majitha. (14) FIR No. 4 dated 7.1.1997, u/s 41/414 IPC, 25 Arms Act, 18/61/85 NDPS Act, 3 OS Act, PS Lopoke, PD Majitha. (15) FIR No. 115, dated 14.2.2003, u/s 489-B, 489-C IPC, PS Basti Jodhewal, Ludhiana. (16) FIR 336, dated 18.9.1999, u/s 354/506 IPC, PS Sadar, Jalandhar. (17) FIR No. 73, dated 21.2.2003, under Section 489-B, 489-C IPC, 25 Arms Act, 22/61/85 NPDS Act, PS Sahnewal, District Ludhiana. (18) FIR No. 229, dated 19.8.2004, u/s 411/414 IPC 18, 21/61/85 NDPS Act, 25 Arms Act, 14 F Act, 3 OS Act, PS Lopoke, PD Majitha. From the above mentioned and narrated cases, it is clear that you remained involved in prejudicial activities of the last 35 years and may continue such activities in future also. On account of above said activities, the Governor of Punjab is satisfied that you having been possessing, transporting and concealing the smuggled items like gold, narcotics, drugs and FICN. He has passed an order for your detention under COFEPOSA Act with a view to prevent you from indulging in such prejudicial activities in future." Mr. R.S. Ghai, learned counsel for the petitioner took the Court through the grounds of detention and other relevant record particularly the various judgments and orders, wherein either the petitioners have been acquired or untraced/cancellation reports have been submitted in those cases, on the basis of which the detaining authority is claiming to draw its subjective satisfaction for passing the impugned detention order. Learned counsel raised various contentions, inter alia that the sponsoring authority did not bring to the notice of the detaining authority the material and vital facts with regard to acquittal of the detenu in the various cases, viz., acquittal of the petitioner in three of the cases registered against him and untraced reports having been submitted in other cases. Since these facts, which could have affected the subjective satisfaction, were not placed, consequently, the same were not considered by the detaining authority. He made reference to the following cases :- (i) FIR 179, dated 20.6.1978 u/s 9/1/78 OP Act, P.S. Lopoke, P.D. Majitha - [Accused acquitted vide judgment and order dated 2.3.1981]; (ii) FIR 180, dated 20.6.1979 u/s 25 Arms Act, P.S. Lopoke, P.D. Majitha - [Accused acquitted vide judgment and order dated 2.3.1981]; (iii) FIR 73, dated 21.2.2003 u/s 489-B, 489-C, 25 Arms Act, 22/61/85 NDPS Act, P.S. Sahnewal, District Ludhiana - [Accused acquitted vide judgment and order dated 24.5.2004]; (iv) FIR No. 130, dated 11.3.1973, u/s 307 IPC, 25 Arms Act, 3/12/15 IP Act, 123 Custom Act, PS Lopoke, Police District Majitha - [Untraced report submitted on 2.10.1973]; (v) FIR No. 189, dated 15.7.1976 u/s 307 IPC, 25 Arms Act, PS Lopoke, PS Majitha - [Untraced report submitted on 5.8.1997]; (vi) FIR No. 45, dated 28.2.1989, u/s 411/414 IPC, 25 Arms Act, 18/61/85 NDPS Act, TDP Act, PS Civil Lines, Amritsar - [Untraced report submitted on 2.12.1989]; (vii) FIR No. 7, dated 23.1.1991 IPC, IP Act, F Act, 3 OS Act, 18/61/85 NDPS Act, Arms Act, PS Lopoke, PD Majitha - [Untraced report submitted on 22.1.1996]; (viii) FIR No. 122, dated 10.12.1994, IPC 25 Arms Act, 3 OS Act, 18/61/85 NDPS Act, PS Lopoke, PD Majitha - [Untraced report submitted on 23.11.1995]; (ix) FIR No. 163 dated 9.8.1995, u/s 411/414 IPC, 25 Arms Act, 18/61/85 NDPS Act, 3 OS Act, PS Lopoke, PD Majitha - [Untraced report submitted on 21.3.1997]; (x) FIR No. 4, dated 7.1.1997, u/s 41/414 IPC, 25 Arms Act, 18/61/85 NDPS Act, 3 OS Act, PS Lopoke, PD Majitha - [Untraced report submitted on 30.11.1997]; (xi) FIR No. 115, dated 14.2.2003, u/s 489-B, 489-C IPC, PS Basti Jodhewal, Ludhiana - [Recommended for cancellation by the Human Rights Commission]. With regard to FIR No. 115 dated 14.2.2003, a reference whereof has been made in the detention order, learned counsel submitted that petitioner is agitating the matter before the Punjab State Human Rights Commission. Learned counsel further submitted that in the case registered vide FIR No. 229 dated 19.8.2004, the petitioner has already been granted bail. A copy of the order has been placed on record as Annexure P-7. The grounds of detention, given to the petitioner, are vague, deficient and lacking details. It is argued that out of 18 cases mentioned in the grounds, at least in 12 cases, untraced/cancellation report was sent while in other the accused was acquitted. However, these facts were not brought to the notice of the detaining authority and, therefore, the detaining authority could not consider the same before issuing the detention order, which renders the detention order invalid. Learned counsel pointed out that in FIR No. 73 dated 21.2.2003, allegations have been found to be false and the accused has been acquitted after due consideration of the merits of the case. None of the copies of the FIRs mentioned in the detention order has been supplied to the petitioner, which has caused grave prejudice to the accused as he could not make an effective representation. Next argument raised by learned counsel is that the service of grounds of detention is complete only when grounds accompany the documents forming basis thereof are supplied. In support, the learned counsel placed reliance on the decision of the Apex Court reported as Dharamdas Shamlal Agarwal v. The Police Commissioner and another, 1989(1) R.C.R.(Criminal) 454 : AIR 1989 Supreme Court 1282; Ramesh v. State of Gujarat and others, 1989(2) R.C.R.(Criminal) 340 : AIR 1989 Supreme Court 1881; Ayya alias Ayub v. State of U.P. and another, 1989(1) R.C.R.(Criminal) 384 : 1989 CAR 29 (SC) and Ashadevi v. K. Shivraj and another, AIR 1979 Supreme Court 447.
(3.) LEARNED counsel for the petitioner further argued that so far as statements relied upon by the detaining authority of the petitioner as well as that of Makhan Singh, Jagdish Singh, Roshan Lal, Darshan Lal, Ravi Kumar, Baldev Singh, Mehar Singh and Rajan Kumar, co-accused are concerned, the said statements were made before the police, therefore, the same cannot be taken into consideration as they are hit by the provisions of Section 25 of the Evidence Act. It is further argued that insofar as the ground that detention order has been passed under the COFEPOSA and that petitioner has been possessing, transporting and concealing narcotic drugs, passing of impugned detention order on the basis of these grounds clearly shows non-application of mind by the detaining authority as there is a special Act, viz., Narcotic Drugs and Psychotropic Substances Act, 1985 to take action against a person dealing in narcotics. It is, thus, argued that the detaining authority mechanically signed the draft submitted by the sponsoring authority and did not apply its mind.;