PIARA SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This is a petition under Art. 32 of, the Constitution of India for a writ of habeas corpus or any other appropriate writ or order quashing the order dt. 3rd Jan. 1985 passed by the Special Secretary to the Government of Punjab for detention of the petitioner and praying for the release of the petitioner.

(2.) By our order dt. 8th May, 1987, we had held that the writ petition succeeds for the reasons which we would give later. We had also set aside the order of detention and directed the petitioner to be released. We are now giving the reasons for the said order.

(3.) The facts necessary for disposal of the writ petition lie within a fairly narrow compass. The petitioner was detained on 21st Nov. 1985 pursuant to an order of detention dt. 3rd Jan. 1985 passed under sub-secs. (1) and (2) of, S. 3 of the National Security Act, 1985 signed by the Special Secretary to the Government of Punjab setting out that the President of India in exercise of the powers conferred by sub-sees. (1) and (2) of S. 3 of the National Security Act, 1985 was pleased to order that the petitioner should be detained. The ground given in that order is that the petitioner is indulging in activities prejudicial to the defence of India and the security of the State. On 17th April, 1985, the petitioner, when he was in jail, was served with an order passed under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Act (referred to hereinafter as COFEPOSA), dt. 17th April, 1985, directing his detention. The petitioner made a representation against his order of detention under COFEPOSA. He was produced before the Advisory Board under that Act and pursuant to the recommendation of the Advisory Board, his detention under COFEPOSA was revoked. The petitioner was also produced before the same Board, being also the Advisory Board under the National Security Act. The petitioner did not make any representation against his detention under that Act as, according to him, he was confused and believed that his detention was only under COFEPOSA. It appears that the Advisory Board confirmed the order of his detention. On 24th Jan. 1986, an order was passed by the Under Secretary to the Government of Punjab, Home Department setting out that the President of India in exercise of powers conferred on him under sub-sec. (1) of S. 12 read with S. 14-A (1) (2) (c) and (d) of the National Security Act, 1980 (No. 65 of 1980) as amended confirmed the aforesaid order of detention and was pleased to order that the petitioner would continue to be detained in the custody of the Inspector General of Prisons, Punjab for a period of two years from the date of his detention. The petitioner made a representation dt. 18th Dec. 1986 through his Advocate addressed to the President of India for revocation. of his detention. On 24th Dec. 1986 the petitioner made a representation to the Special Secretary to the Government of Punjab, Department of Home Affairs and Justice, against the detention. In this representation the petitioner, inter alia, contended that his detention was invalid as vital facts and materials that should have influenced the minds of the declaring authority and the detaining authority had not been placed before them. Both the representations made by the petitioner were rejected on 26th Feb. 1987. According to the respondent, the representation made to the Special Secretary, Government of Punjab was received on 14th Jan. 1987. But, according to the petitioner, it was received by the Special Secretary or 30th Dec. 1986. In support of this contention the detenu has produced an acknowledgment slip along with a copy of his representation. We propose to proceed on the assumption that the representation was received by the Special Secretary on 14th Jan. 1987 because, even on that assumption, the petitioner, in our opinion, must succeed in the petition.