GURSHARAN SINGH SODHI Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THROUGH this Criminal Writ Petition filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, petitioner Gursharan Singh Sodhi has prayed for the quashing of detention order bearing No. 1/32/9/2-3.III (COFEPOSA)/955 dated 1.7.1992, passed by respondent No. 2 (Deputy Secretary Home, Government of Punjab, Chandigarh), under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter to be referred to "COFEPOSA") in pursuance of which he has been detained in Central Jail, Bathinda (Punjab) since 24.7.2001 as it is violative of Articles 14, 22, and 22 of the Constitution of India.

(2.) IT is alleged in this petition that he is absolutely innocent and has been detained in pursuance of the said order of detention passed by respondent No. 2. It is alleged that the detaining authority passed this order of detention without application of mind and in a mechanical and routine manner. He has been attending the Court of Additional Chief Metropolitan Magistrate, New Delhi in connection with one false case under the Customs Act pertaining to the year, 1987. He did appear in this case on 28.10.1991 along with his counsel. When he was coming out of the Court of the Additional Chief Metropolitan Magistrate, New Delhi, he was forcibly abducted from the Court premises in the presence of his Advocate by the officials of the Directorate of Revenue Intelligence (D.R.I.) who took him to their office in their vehicle No. DBC-7056. He was mercilessly beaten and coerced into making an involuntary statement. His Advocate filed Criminal Writ Petition No. 594 of 1991 before the Delhi High Court on the same very day, which was a writ of habeas corpus. Copy of the said writ petition is annexed as Annexure P.4 to this petition. Annexure P.2 is the order of detention and Annexure P.3 is the list of documents delivered to him by the detaining authority before the detention order was passed. It is alleged that notice was issued to the Union of India by the Delhi High Court. Respondents to Criminal Writ Petition No. 594 of 1991 filed reply to that petition by means of affidavit. On 31.10.1991, the Delhi High Court passed a detailed order expressing its doubts over the stand of the respondents therein and directed them to file an affidavit. Copy of the said order dated 31.10.1991 of Delhi High Court is Annexure P-5. Order Annexure P.5 was neither placed for consideration before the detaining authority nor was considered by the detaining authority although the order Annexure P.5 was not crucial and relevant. Even after the matter had been taken cognizance of by the Delhi High Court, the officials of the respondents therein did not stop acting illegally and indulged into high- handedness and the petitioner was sent illegally and surreptitiously by them to the customs officials at Amritsar. He was against beaten and coerced into making an involeuntary statement on 30.10.1991. Although the detaining authority relied on the statement dated 30.10.1991 alleged to have been made by him before the customs officials copy thereof was not supplied to him. It is well-settled law that the detaining authority is bound to supply copies of all the documents relied upon by the detaining authority within five days of his detention in order to enable the detenu to make an effective representation against his detention. In this manner, he became deprived of his Constitutional right as enshrined in Article 22(5) of the Constitution of India, to make an effective representation against his detention. It is alleged that the detention order Annexure P.2 is liable to be quashed on this sole ground as held by the Hon'ble Supreme Court in several judicial pronouncements made from time to time. In the grounds of detention supplied to him there is allegation of recovery of 200 gold biscuits from the Maruti car bearing registration No. DNA-1362, which was allegedly being driven by Kuldeep Singh alias Pappu son of Seva Singh alongwith another person sitting with him namely; Balwinder Singh. The said car was registered in the name of Shri Ajay Kumar Jain. The detention order passed against Kuldeep Singh and Balwinder Singh, the aforesaid persons, was revoked, on the opinion of the Advisory Board though the allegation was the recovery of 200 gold biscuits which was a contraband item effected from that car. There is not even an iota of evidence to connect the petitioner with the recovery of 200 gold biscuits from Maruti car bearing No. DNA-1362. There is inordinate delay in passing the detention order Annexure P.2 which he has called in question through this criminal writ petition. Detention order was passed on 1.7.1992 while the recovery of 200 gold biscuits from the Maruti car No. DNA-1362 allegedly took place on 9.6.1991, meaning thereby, the detention order was passed after a lapse of abut 13 months of the date of alleged recovery of the contraband items from Maruti car No. DNA-1362. It is further alleged that there is inordinate delay in executing the detention order. For more than ten years, no step was taken for detaining the petitioner pursuant to the order of detention passed on 1.7.1992. If the detention order was passed in 1992 and the same was executed in 2001, the very purpose of detention lost its meaning as the very purpose of the "COFEPOSA" is defeated. The object of COFEPOSA is not punitive but preventive. Though he was appearing before the Chief Metropolitan Magistrate, Amritsar, in connection with the case under the Customs Act, pertaining to the year 1987, no step was taken to serve this detention order on him for taking him into custody. In support of the fact that he had been regularly appearing before the Chief Metropolitan Magistrate, Amritsar in a case titled Assistant Collector Customs, Ministry of Finance, Department of Revenue, Union of India, Amritsar v. Gursharan Singh Sodhi son of Jagat Singh, resident of 2/32-A, East Punjabi Bagh, New Delhi and another, he has attached the detailed order sheet as Annexure P.6 to the petition. No prejudicial activity has been attributed to him during the last more than 12 years. As such, this detention order is punitive in character rather than preventive in character. When no effort was made to serve this detention order on him during the past more than 10 years, and if no prejudicial activity was attributed to him during the past ten years, there was no point in taking him in custody in 2001 in pursuance to the order of detention dated 1.7.1992. The order of detention dated 1.7.1992 loses its meaning when it remained only on paper for about nine years. He also sent one intimation in May, 1992 to the Assistant Collector (Preventive), Amritsar while in Central Jail, Indore, intimating him that if there is any detention order passed by the authorities in Punjab. Annexure P.7 is the reply sent to him by the Assistant Collector (Preventive), Central Excise Collectorate, Chandigarh at his Indore address. He remained confined in Indore Jail till 28.7.1992. The impugned order of detention dated 1.7.1992 could have been served upon him in Central Jail, Indore, if the same were genuine. In the earlier detention order dated 18.11.1991 which was quashed by the Hon'ble High Court at Indore vide judgment dated 28.7.1992, the detaining authority also took into consideration the recovery of 200 contraband gold biscuits on 9.6.1991 and the detaining authority also relied upon the alleged involuntary statement dated 30.10.1991 of the petitioner in that case. It is alleged that no detention order could be passed against respondent No. 1 on the basis of another detention order on the same material and on the same grounds, which the detaining authority had taken into consideration while passing the earlier order of detention dated 18.11.1991. It is further alleged that there is inordinate delay in consideration of the representations sent by him to the detaining authorities on 7.8.2001 but the same was rejected only on 26.9.2001. Annexure P.8 is the copy of said representation dated 7.8.2001. Vide order dated 24.9.2001 (annexure P.9), the said representation was rejected by the detaining authority. The Hon'ble Supreme Court has held in a catena of judgments that even one day's delay in considering the representation challenging the order of detention is fatal and shall be a ground for revocation of the order of detention. The detaining authority ought to have considered his representation expeditiously as his right to liberty is one of the basic postulates on which the democratic structure of our country rests. His right to make effective representation was affected because some of the documents supplied to him which constituted the grounds of detention, were illegible and despite specific request, the legible copies of those documents, were not supplied to him.

(3.) I have heard the learned Counsel for the petitioner and the learned Deputy Advocate General, Punjab.