AMRIK SINGH Vs. SECRETARY TO GOVERNMENT OF PUNJAB

JUDGEMENT

(1.) By this order two Criminal Petitions No. 880 of 1994, Amrik Singh v. Secretary to Govt. Punjab and Criminal Petition No. 872 of 1994, Suba Singh v. Secretary to Govt. Punjab are being disposed of as Mr. Sandhu learned counsel appearing for the petitioners in both the cases has raised same points for the petitioners prayer to set aside detention order (Annexure P-1) dated 17-2-1994 and grounds of detention of the same date (Annexure P-l/A) in Amrik Singh v. Secretary to Govt. Punjab and order of detention dated 15-2-1994 (Annexure P-1) and grounds of detention of the same date in Criminal Petition No. 872 of 1994, Suba Singh v. Secretary to Govt. Punjab and others.

(2.) The facts, however, as culled out from Criminal Petition No. 880 of 1994. Amrik Singh V. Secretary to Govt. Punjab as per the version of the petitioner given in the writ, reveal that the petition was working as Constable/Head Constable and was awarded many commendation certificates and was given cash rewards by the Police Department. He is stated to have helped Punjab Police in intercepting the trucks and persons involved in narcotics smuggling. He was promoted as Sub-Inspector of Police due to his keen interest and devotion to duty. However, he became an eye sore to the smugglers and is stated to have been implicated in false cases. On 10th April, 1993, Customs Department, Amritsar called the petitioner by issuing summons under section 108 of the Customs Act, 1962 and asked him to make statement about the allegations leveled against him by Satbir Singh and Balwinder Singh in which they had alleged that on 2nd January, 1993, Satbir Singh, Suba Singh, Balwinder Singh and the petitioner went to Pathankot Jalandhar Road Bhogpur and Tanda and they all snatched gold biscuits from one Paramjit Singh who was coming on a scooter by over-powering him and they fled away with the gold biscuits. It is pleaded that the petitioner denied all the allegations and did not make any confession before the Customs Authority. He was sent on official duty to Kapurthala along with Suba Singh Constable where he was interrogated and was taken into custody on 7-2-1993 and later on he was told that a case of smuggling has been registered against him vide F.I.R. No. 21 dated 9-2-1993 pertaining to Police Station, Kapurthala. Major Singh, S.H.O. Police Station 'A' Division, Ram Bagh, Amritsar, in his letter dated 20-4-1993 addressed to the Superintendent of Customs (Preventive) Amritsar, stated that the petitioner was sent to Kapurthala along with Suba Singh Constable for official work. On further enquiries, the Customs Department was informed that petitioner remained on duty during the period in which the alleged smuggling activity was reported. Order of detention dated 17-2-1994 (Annexure P- l) was passed by the Secretary to Government Punjab, Department of Home Affairs and Justice on the basis of grounds of detention of the even date. These grounds of detention are detailed in Annexure P-1/A. It is pleaded that when the petitioner came to know about the detention order, he after obtaining the copies from some source challenged the detention order vide Criminal Writ Petition No. 116 of 1994 before this Court on 24-8-1994 when the following order was passed :"Admittedly, in the present case, petitioner is evading service of the Detention Order. The grounds taken and contentions urged by the Counsel for the petitioner do not make out a case, which would impel this Court to interfere with the Order of Detention at the pre-execution stage. The case of the petitioner does not fall under any of the above mentioned five categories. The grounds on which the Detention Order is being sought to be quashed in the present case, can be urged only after the petitioner surrenders to the detaining authority or the Order is executed against him."Against the aforesaid order, Special Leave petition was filed before the Supreme Court which came up for hearing on 17-10-1994 which was dismissed by observing as follows :"In the facts and circumstances of the case, we do not consider it a fit case to examine the questions raised in this petition at this stage prior to detention order being served on the petitioner. We make it clear that the grounds raised herein would be available to the petitioners for challenging their detention at the subsequent stage. For this reason, we express no opinion on the merits of the points, which have been raised. The Special Leave Petition is dismissed at this stage."

(3.) While challenging the grounds of detention vide present writ petition, the petitioner pleads that after ,going through the grounds of detention, he came to know that F.I.R. No. 21 dated 9-2-1993 was lodged at the Police Station, Kapurthala against him and some other persons. Trial Court discharged him in the said F.I.R. and he was reinstated immediately by the police department. Even though the detaining authority had mentioned the number of F.I.R. but the sponsoring authority did not place before the detaining authority the copy of the discharge order of the petitioner and others against whom the F.I.R. was lodged. Another case bearing No. 229 of 1993 dated 8-6-1993, based on F.I.R. No. 13 of 1993, Police Station 'A' Division, Amritsar dated 8-2-1993 was tried by the Judicial Magistrate 1st Class, Amritsar against Paramjit Singh Balwinder Singh, Suba Singh and the petitioner under Sections 411/414 of the N.D.P.S. Act and Gold Control Act, on the basis of the allegations mentioned against the petitioner in paras 5 and 6 of the grounds of detention but the trial Judge discharged him and others on the ground that there was no evidence in the matter. This order was passed on 3-7-1993. It is pleaded that sponsoring authority had not placed vital documents of discharge of petitioner by the trial Court in both the cases and non-placing of the material facts leading to the discharge of petitioner before the detaining authority vitiates the subjective satisfaction of the detaining authority. If material or vital facts which have a bearing on the issue and would certainly weigh with the satisfaction of the detaining authority one way or the other and influence the mind of the said authority are either withheld or suppressed by the sponsoring authority or ignored; the same would itself be enough to set aside the order of detention. It is, thus, pleaded that non-placing of material fact of acquittal/discharge of the petitioner in criminal cases before the detaining authority resulted in non-application of mind of the detaining authority. It is also pleaded that the order of detention came into being after 13 1/2 months after the alleged incident mentioned in the grounds of detention and is, therefore, illegal because there is no proximity between the alleged activity and the passing of the detention order and that the order of detention is void inasmuch as that the satisfaction expressed therein is not real and genuine but mechanical. It is further pleaded that non-placing of show-cause notice and reply thereto before the detaining authority or suppressing this fact from the detaining authority would vitiate the passing of the detention order as also the non-supply of the report/proposal prepared by the sponsoring authority violates the provisions of Article 22 of the Constitution of India. It is also the case of the petitioner that the detaining authority had not applied its mind while framing the grounds of detention but had copied them from the grounds of detention prepared by the custom authorities and the non-supply of search authorisation warrants of the premises mentioned in the grounds of detention makes the detention illegal. It is also the case of the petitioner that the delay in deciding the representation of the petitioner by respondents Nos. 1 and 3 and the delay in executing the detention order, when there was no stay order granted by any Court would render the order of detention bad in law.