S SARWAN SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS petition under Articles 226-227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) relates to quashment of detention order No. F. No. 673/88/cus.-VIII dated 11-10-1988, Annexure P/3, against the petitioner passed by Joint Secretary to Government of India, Ministry of Finance, under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'cofeposa' Act ).

(2.) IN brief facts relevant for the disposal of this petition, are, that on 19-7-1988 the officers of the Enforcement Directorate searched the residential premises of the petitioner at village Raipur Prola, District Jalandhar. As per allegations of the Enforcement Authorities, documents recovered from the house of the petitioner established the involvement of the petitioner in activities prejudicial to the augmentation and conservation of foreign exchange resources of the country. After service of notice under Section 40 of Foreign Exchange Regulation Act, 1973 the petitioner accompanied the Enforcement Officers to their office at Jalandhar and there his statement was recorded. It was further alleged that the statement tendered by the petitioner was of voluntary nature and he has written the same in his own hand without any threat or pressure.

(3.) ON the other hand, according to the allegations in the petition except for two passbooks, one diary and few paper sheets, nothing incriminating was recovered on the search of person, or, premises of the petitioner. It was further alleged that after the completion of the search the petitioner was taken to the office of the Enforcement Directorate and was subjected to beatings, torture, duress and coercion. He was forced to sign blank papers and a dictated involuntary statement incriminating the petitioner was obtained from him. The petitioner was also threatened by the Enforcement Officers that in case he does not sign the involuntary and incriminating statement and certain blank papers, then, the officers will see to it that an order of detention under COFEPOSA is passed against the petitioner. The petitioner was produced in the Court of Chief Judicial Magistrate, only on 21-7-1988 and was remanded to judicial custody. The petitioner was got medically examined on 21-7-1988 and was granted bail on 25-7-88 by the Chief Judicial Magistrate, Jalandhar, He made representation on 26-7-1988 to respondent No. 3, wherein, he retracted his involuntary incriminating statement and further requested for investigation of the false case against the petitioner. It was further alleged that the petitioner, who, is 66 years of age suffers from eye trouble, heart ailment and from various other diseases, had been staying at his residence from the date of search and illegal proceedings, and, in the third week of Feb. 1989, he came to know that a preventive detention order under COFEPOSA Act on the basis of a false case appeared to have been passed against him. The petitioner then made representation on 23-2-1989 to respondent No. 3 for reconsideration of his case and also prayed that order of detention passed, if any, be revoked. The petitioner did not receive any reply and thereafter he made another representation (Annexure P-2) to respondent No. 3. On the instructions of respondent No. 3, police force from Police-Station Sadar, Jalandhar, raided the petitioner's house on the morning of 6-4-1989 and asked the family members/ relatives of the petitioner who were present there, about the whereabouts of the petitioner and informed that they have come to arrest the petitioner, and, also showed them impugned order of detention. Those relations of the petitioner informed the police that he was out of station in connection with his treatment. The police forcibly took Harsharan Kaur petitioner's daughter-in-law, to police-station and kept her there throughout the day. On the request of village Panchayat she was allowed to leave the police-station. In stead her brother Sukhbir Singh was illegally detained, and, the police had threatened that Sukhbir Singh would not be allowed to leave the police-station till the petitioner is produced at police-station, in pursuance of the impugned order of detention (Annexure P-3 ).