BALWANT SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The petitioner was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act). He has challenged the detention by means of this petition through jail and an amicus curiae has argued this petition. There are three grounds of challenge. They may be dealt with seriatum: An order under section 3(1) of the Act was passed by the State Government of Punjab on January 10, 1985. As required under subsection (2) of section 3 of the Act, the State Government on the following day, i.e., January 11, 1985, sent a report in respect of the order to the Central Government. The petitioner was described as Balwant Singh son of Major Singh, resident of. The order could not be carried out, for it was found that the parentage of the petitioner had been misdescribed. His parent should have been described as Nagar Singh. Thus, on June 12, 1985, the passed that very day correctly describing the petitioner. Though sub-section (2) of section 3 of the Act requires that when an order of detention is made by a State Government, a report in respect of the order is to be forwarded to the Central Government within ten days yet the State Government on 4th July, 1985, belatedly sent such report to the Central Government. The order was finally communicated to the petitioner on July 5,1985, and since then the petitioner is in detention. Now, the petitionerTs learned counsel submits that this is clearly his violation of section 3(2) of the Act. The State, on the other hand, maintains that the requirement of the said provision has been fulfilled in letter and spirit inasmuch as both the orders of detention were verbatim the same except the description of the detenu. And, when the Central Government, on being apprised of the detention order by the State Government on January 11,1985, did not choose to revoke the order in exercise of its powers under. Section 11(1) (a) of the Act, it was legitimate for the State Government to assume that the detention stood virtually approved. It has further been maintained by the State Government that, in letter and spirit, it was the same order which was corrected by the process of revocation and refresher requiring only a modicum of compliance under section 3(2) of the Act, which the State Government did by intimation of July 4, 1985. In this manner it has been urged that there is substantial compliance of section 3(2) of the Act. In Sher Mohammad v. The State of West Bengal, their lordships of the Supreme Court, in considering almost identical provisions under the maintenance of Internal Security Act, in almost identical set of facts, observed that a communication to the Central Government within the time specified was a procedural mandate which is inviolable except on peril of the order being voided. Now, it is plain here that there bas been an infringement of the procedural safeguards. This has to be viewed in the light of the powers conferred on the Central Government to revoke orders and the Central Government is required to be intimated in respect of the order within the statutory period of ten days. The law brooks no delay in this regard, putting premium to the liberty of the citizens. In no event can such a requirement be treated as a procedural formality. The view of the Central Government, if the order has been communicated well in time in June 1985, was not expected necessarily to be the same as it was in January 1985. It could not be assumed that, like before, the Central Government would have kept silent and given to it a tacit approval. Thus, in my view, the detention order, on this ground alone deserves to be quashed.

(2.) The second point, though not necessarily to be decided, is with regard to the alleged discrimination between the petitioner and a few others who were said to be along with him in the prejudicial activity of smuggling opium from Pakistan. It is urged that those persons were not put to preventive detention. At one point of time, it was asserted that those persons had been released by the Advisory Board. However, on information sought, it was discovered that those persons had not been detained under the Act (COFEPOSA) at all. I fail to see how a ground of discrimination can be raised in a preventive detention. Every case of preventive detention is an individual case something between the State and the detainee. The subjective satisfaction for detaining a person, entertained by the Detaining Authority, may differ from person to person similarly engaged in the prejudicial activities. This contention is without merit and is thus repelled.

(3.) The third point raised is that the prejudicial activities of smuggling were said to be of 7.5.1984 and the detention order was passed on 12.6.1985 approximately after 13 months. Section 5-A of the Act is clearly an answer to such an argument. The detention order cannot be challenged for lack of proximity between the prejudicial activities and the detention order. This contention also fails. For the foregoing reasons, this petition is accepted and the detention order is hereby quashed. The petitioner is to he set at liberty forthwith. Petition accepted.