GHULLA SINGH Vs. SECRETARY, GOVERNMENT OF PUNJAB

JUDGEMENT

(1.) THE present petition under Article 226 of the Constitution of India has been filed for quashing Detention Order No. 1/4/94-3HIII (COFEPOSA)/64 dated 20.1.1994, Annexure P-1 and grounds of detention dated 20.1.1994, Annexure P-1/A, passed by respondent No. 1 against the petitioner.

(2.) IN brief, the facts as stated in the petition are that the petitioner, who is resident of village Varpal, District Amritsar, was arrested on 22.8.1993 under Section 104(1) of the Customs Act, 1962 (in short, 1962 Act) by the Customs Authorities. While the petitioner was in judicial custody, he was served with the detention order along with grounds of detention. The detention order and grounds of detention are being assailed on the following grounds :-

(3.) TAKING the first submission, namely the passing of detention order, the petitioner was arrested under Section 104(1) of the 1962 Act on 22.8.1993. The detention order was passed on 20.1.1994, i.e. after five months of the events mentioned in the grounds of detention. In its reply, respondent No. 1has explained that it took sufficiently long time in investigating the case at various levels, as the antecedents of the petitioner and his co-associates were to be verified and various links of the petitioner had to be proved and unearthed. After collecting and thoroughly examining the entire material on record, the sponsoring Authority sponsored the proposal on 5.11.1993 to the State Government for the detention of the petitioner which was received in the office of respondent No. 1 on the same day and the proposal was examined by the legal agency on 9.11.1993. Some additional information was called from the sponsoring Authority vide State Government letter dated 10.11.1993. The case was again examined on 17.11.1993 by the legal agency in the light of information received from the sponsoring Authority, which reached in the office of respondent No. 1 on 16.11.1993. In the meanwhile, the case was further examined and the original grounds of detention in Punjabi were prepared and the same were translated into English, which was quite a voluminous job. The case was further examined on 4.1.1994 by the legal agency, in the light of information received from the office. Ultimately, the proposal for passing the detention order of the petitioner was sent to the State Law Department on 6.1.1994, where it was examined on 7.1.1994, and the formal order was issued on 18.1.1994. Respondents have further stated that during the proceedings of the detention proposal, nearly 45 days, details of which have been given in the written statement, were holidays. These facts have not been shown to be untrue. In these circumstances, it can reasonably be held that nexus between the prejudicial activity and ground of detention had not become shaped and grounds were not rendered stale. In Rajendera Kumar Natvarlal Shah v. State of Gujarat, 1988(2) Recent Criminal Reports 73, even an unexplained delay of five months in making the order was not found sufficient to vitiate the order if the grounds were not stale and the nexus between the grounds and the order of detention still existed. In that case, it was observed that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the COFEPOSA Act and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution. It was further held that rule as to unexplained delay in taking action is not inflexible. Mere delay in making of an order of detention under a law like the COFEPOSA Act enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence, have been posing a serious threat to the economy and thereby to the security of the nation, the courts should not merely on account of the delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are stale or illusory or that there was no real nexus between the grounds and the impugned order of detention." Applying the law laid down by the Supreme Court in Rajendra Kumar Natvarlal Shah's case (supra), to the facts of the present case. I am of the view that considering the explanation given by respondent No. 1 the nexus was not snapped and grounds on which detention order was passed, were not rendered stale. The first submission, therefore, shall stand rejected.