KASHMIR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) IN this writ petition under Articles 226 and 227 of the Constitution of India, Kashmir Singh claimed issuance of writ in the nature of Habeas Corpus directing the respondent State to release the petitioner who was illegally detained in Central Jail Ferozepur under orders passed by the State of Punjab, Annexure P-1 on the basis of the grounds contained in Annexure P-2. This order was passed under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

(2.) ON March 10, 1989 the petitioner was earlier detained under aforesaid Act on the allegation that recovery of charas and brown powder (said to be heroin) from his possession was made on January 11, 1988, and January 30, 1988. Criminal cases were registered against him. The detention order made on March 10, 1989 was successfully challenged in Criminal Writ Petition No. 1552 of 1989. The order was passed on October 16, 1989. The judgment in the previous case shows that Kashmir Singh, petitioner was acquitted by the Additional Sessions Judge, Ferozepur on February 2, 1989 with respect to the case registered on January 11, 1988. Vide order Annexure P-1 passed in the present case on February 13, 1991, the petitioner was detained as per grounds contained in Annexure P.2. On April 22, 1990, a search was conducted at the residential premises of the petitioner which resulted in the recovery of two packets containing 1/2 kg each of brown powder (said to be herein). A sample was sent to the Laboratory and as per report of the chemical examiner dated July 9, 1990 it contained diacetyle morphine which is an incriminating article under the Act. On that very day, the petitioner is alleged to have made a statement that the aforesaid consignment was handed over to him by the Ashu, a Muslim resident of Village Kirianwali Bhaini Tehsil Dipapur, Distt. Okara (Pakistan) two days prior to the alleged recovery and he was only to get 10% commission on the articles being delivered to one Khalil of Delhi. It was also mentioned that earlier 6 kgs. heroin was recovered from him valued about Rs. 30,00,000/- on January 30, 1988 and the Additional Collector had imposed fine of Rs. 1 lakh. The grounds for challenging the impugned order which are pressed during arguments briefly are as under :-

(3.) IN reply filed by the State, it is now sought to be cleared that while passing the impugned order of detention, the fact that previous order of detention was quashed by this Court, was taken into consideration. However, this matter was not brought to prominence in the grounds of the detention which were served on the petitioner. The petitioner thus had on occasion of stress or represent the true facts that in one case in which he was involved earlier he was acquitted by the Additional Sessions Judge and that the order of detention, for the reasons recorded therein, was quashed by the High Court vide order dated October 16, 1989. The Supreme Court in M. Ahamedkutty v. Union of India and another, 1990(1) RCR 423 observed that the grounds of datention served on the petitioner without documents relied upon did not amount to due service thereof and this vitiated the detention order void ab initio. The mere fact that the detenu already knew the contents of some documents which were not supplied was of no consequence. In Avtar Singh and others v. State of Jammu and Kashmir and others, 1985 Criminal Law Journal 796, similar view was taken by the Supreme Court. In that case grounds for revocation of earlier detention order was not brought on the record. The ground of the second detention order did not indicate that the Detaining Authority was aware of the prior detention and was of the opinion that further detention was necessary in such circumstances. Detention order was passed mechanically and the detenu was entitled to release. In the present case also, the impugned order of detention, does not indicate that the State Government had taken into consideration the previous detention order on the grounds on which the same quashed.