KIMTI LAL Vs. SECY. TO GOVT. OF PB.

JUDGEMENT

(1.) THIS petition under Article 226 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 dated 8.4.1993 (Annexure P-1) passed against the petitioner for engaging in concealing smuggled goods, in exercise of the powers conferred by Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA with a view to prevent the petitioner from indulging in said prejudicial activities in future.

(2.) ACCORDING to the petitioner, he was arrested on 23.7.1992 under Section 104(1) of the Customs Act, 1962 by the Customs Authorities. Thereafter, he was tortured and his thumb impressions were obtained on some plain papers which were later on used for his alleged confessional statement on the basis whereof detention order was passed, even though, the petitioner was released on bail on 25th July, 1992 by the Ilaqa Magistrate, Batala. It was further pleaded that from the date the petitioner was released on bail till the impugned detention order was passed, the petitioner did not indulge in any prejudicial activity; that there is no likelihood of the petitioner indulging in criminal acts of smuggling and that the impugned detention order dated 8.4.1993 was passed by the detaining authority on the basis of the alleged confessional statement of the petitioner without any subjective satisfaction. It was next pleaded that the petitioner has neither been served with the detention order nor with the ground of detention or report/proposal prepared by the sponsoring authority and as such the impugned order of detention passed against the petitioner is illegal; that just to make the retraction ineffective the Customs Authorities again summoned the petitioner on 23.9.1992 and asked him to make a statement to the effect that his previous statement made on 23.7.1992 was correct. The petitioner sent representation to the Collector of Customs, Chandigarh on 24.9.1992 that his statement dated 23.9.1992 was not a voluntary statement and was obtained under threats. It was further pleaded that the detention order has been passed for extraneous reasons and for wrongful purpose i.e. detention of the petitioner in jail inspite of the fact that he had already been released on bail under the orders of the Court and had not indulged in any prejudicial activity; that the order of detention is neither bonafide nor of a preventive nature as contemplated by COFEPOSE Act and that order of detention, was passed to circumvent the judicial process, in order to keep the petitioner in custody after he had been granted bail by the trial Magistrate and the said order is punitive in nature. It was next pleaded that the impugned order of detention was passed after the alleged recovery of 7 gold biscuits on 23.7.1992 i.e. after 8 months and the impugned order of detention is vitiated on the ground of lack of promptitude and unexplained delay between the prejudicial activities and passing of the impugned orders, which shows that the detaining authority had not applied its mind while framing grounds of detention and copies them from the grounds of detention already prepared by the Customs Authorities. This further shows lack of subjective satisfaction on the part of the detaining authority. It was next pleaded that the detaining authority did not consider the telegrams sent by the wife of the petitioner and the retracted confession made through the representation by the petitioner on 24.9.1992. It was also asserted that the impugned order of detention and grounds of detention are illegal vague, arbitrary, contrary to the well-settled proposition of law and are liable to be quashed.

(3.) THE learned counsel for the parties were heard.