DILSHAD Vs. STATE OF PUNJAB

JUDGEMENT

(1.) DILSHAD son of Shri Ishaq through present criminal writ filed by him under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure seeks quashing of detention order dated 18.9.1991, Annexure P-1, passed by respondent State of Punjab under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter to be referred to as the COFEPOSA Act). The facts on which the relief aforesaid rests, need to be enumerated.

(2.) PETITIONER is presently confined in Central Jail, Patiala and the impugned order, Annexure P-1, was passed by the State of Punjab on 18.9.1991 under Sub-section (1) of Section 3 of COFEPOSA Act. In grounds of detention, Annexure P-2, it is mentioned that on 21.2.1991, petitioner, holder of Indian Passport No. C-394595, entered India from Pakistan through Land Customs Station, Attari Road. After completion of health and immigration formalities, he presented his baggage for customs clearance. The Baggage Officer on duty asked him to declare the contents of his baggage which consisted of three packages. He was also asked by the Baggage Officer to declare whether he was carrying any gold or silver either in his baggage or on his person. He declared 30 metres of textile, wearing apparels and eatables. However, his baggage was subjected to examination and be was found to have goods as per his declaration. In the eatables, he had two packets of sweets. While the Baggage Officer was examining the packets of sweets, petitioner showed some signs of nervousness. On this, the Baggage Officer got suspicious and examined the sweets. It was found that some glittering substance in the form of powder was fixed on the sweets. Thereafter, the sweets were given for examination to the goldsmith, who was incidently present in the hall in connection with gold seizure from four lady passengers. He examined the sweets and declared that sweets contained gold in fine dust powder form. He further stated that gold powder could be separated from the sweets by Chemical process. Thereafter, the instruments and Chemical acids needed to separate the gold from sweets were brought and during the said course of process of chemical, conducted in the presence of petitioner and two other witnesses, the gold-smith converted the extracted gold powder into four flats - rectangular bars. As per goldsmith's certificate, the said four flats - rectangular gold bars were of 24 carat purity weighing 483 gms. and valued at Rs. 1,67,601/-. It is on the grounds aforesaid that detention order, Annexure P-1, was passed.

(3.) THE undisputed facts of the case reveal that recovery of incriminating articles was made from the petitioner on 21.2.1991 whereas the order of detention was passed on 18.9.1994 and ultimately it was executed on 10.8.1994. There is, thus, delay of more than 2-1/2 years in execution of detention order. It is conceded proposition of law that if there has been unexplained delay in executing the detention order, the same in itself is sufficient ground to quash the detention order. Mr. Rakkar, however, relies on a Supreme Court Judgment in P.U. Iqbal v. Union of India and others, 1992 Criminal Appeal Reports 53.