HARJIT SINGH ALIAS JITTU Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India, seeking quashment of the order of detention dated 31.8.1999 and the subsequent orders dated 18.11.1999 and 3.12.1999.

(2.) IN the petition it was alleged by the petitioner that he was in detention in Central Jail Patiala. It was alleged that he was an agriculturist by profession and was a resident of Village Seron, now Village Bhail Dhaiwala, Police Station Goindwal Sahib, Police District Tarn Taran, District Amritsar. It was alleged that the petitioner and his brother Hardeep Singh were picked up by the police of CIA Staff, Tarn Taran and were falsely involved in cases under Section 18 of the NDPS Act, 1985 on 4.4.1998 vide FIR No. 24 (against the petitioner) and FIR No. 25 (against his brother Hardeep Singh) of P.S. Goindwal Sahib, in respect of alleged recovery of 11-1/2 kgs. and 8-1/2 kgs. of opium respectively from their possession. It was alleged that both the brothers were confined in the Jail at Amritsar and were sent up for trial before the Sessions Court in their respective cases and that the cases were still pending at Amritsar. It was further alleged that prior to the registration of FIR No. 24 dated 4.4.1998, the police had involved the petitioner in FIR No. 120 of 1997 of PS Goindwal Sahib under Section 382 IPC and that the said case was withdrawn by the prosecution against the petitioner as there was no evidence to prove the alleged offence against him and resultantly the petitioner was discharged by the SDJM Tarn Taran vide order dated 10.6.1999. It was alleged that except the said case under Section 382 IPC, there was no other case registered against the petitioner prior to FIR No. 24 dated 4.4.1998 under Section 18 of the NDPS Act or even thereafter. It was alleged that Tarn Taran Police without any basis initiated and put up proposal for the detention of the petitioner and the District Attorney, Amritsar recommended for the detention of the petitioner on the sole basis of recovery of heavy quantity of opium, which fact is yet to be proved by the prosecution before the Court. It was alleged that on the basis of the said recommendation of the District Attorney, the Punjab Government passed order of detention dated 31.8.1999 (copy annexure P-5) under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as the Act) on the alleged basis of engaging in importation, transportation and possession of narcotic drugs, even without specifying the period of detention. It was alleged that after the detention order was served upon the petitioner in Central Jail Amritsar, he was also served with the grounds of detention, copy annexure P-6. It was alleged that since the order of detention and grounds of detention were in English and not in the language of the petitioner i.e. Punjabi, he being illiterate, handed over the detention order to his counsel to submit a representation on his behalf and thereafter the counsel for the petitioner submitted representation, copy annexure P-7 to the concerned authority i.e. respondent No. 2 within the stipulated period. It was further alleged that the representation was also submitted to the Central Government on 20.10.1999. It was further alleged that the case of the petitioner was referred to the "Board" for opinion and the "Board" illegally and wrongly opined against the petitioner and recommended the detention of the petitioner. It was alleged that on the basis of the said opinion of the "Board", the State Government without any application of mind confirmed the detention of the petitioner vide order dated 3.12.1999, copy annexure P-8, while the Central Government also rejected the representation of the petitioner vide order dated 18.11.1999, copy Annexure P-9 wrongly and illegally. It was alleged that the order of detention dated 31.8.1999, copy annexure P-5 and its confirmation vide order dated 3.12.1999, copy annexure P-8 and order of rejection dated 18.11.1999, copy annexure P-9 passed by the Central, Government were illegal and void and were liable to be set aside, inter alia on the ground that the same were passed without any application of mind. It was further alleged that the alleged recovery of 11-1/2 kgs. of opium from the petitioner on 4.4.1998 was the subject matter of his prosecution in FIR No. 24 dated 4.4.1998 under Section 18 of the NDPS Act. It was alleged that there was nothing on the record to show that the antecedents of the petitioner were such which may justify the detention of the petitioner on 31.8.1999 i.e. after more than 1 year and 4 months of the alleged recovery. It was alleged that the delay in passing the detention order by itself was fatal and would prove the non- application of mind. It was further alleged that the order of detention passed by the detaining authority is a cyclostyled order without any application of mind. It was alleged that the order of detention was contrary to Section 3(1) of the Act. It was further alleged that the order of detention is essentially precautionary in nature based on the past conduct and other surrounding circumstances. It was alleged that in the present case, there was absolutely no justification for passing the order of detention. It was further alleged that there were no sufficient grounds justifying the detention of the petitioner. It was further alleged that even though the petitioner understands only Punjabi language being illiterate, yet the detention order and the grounds of detention were passed in English language which the petitioner did not understand. It was further alleged that in the present case the detention of the petitioner was unwarranted and untenable since its inception, as he was still in judicial custody since 4.4.1998 in the aforesaid FIR. It was further alleged that the orders passed by the State Government on 3.12.1999 and the Central Government on 18.12.1999 were also passed without any application of mind and were even otherwise non-speaking. It was accordingly prayed that the order of detention and the subsequent orders passed by the State Government and Central Government be quashed and the petitioner be set at liberty and be released from detention forthwith.

(3.) I have heard the learned counsel for the parties and have gone through the record carefully.