GURA MASIH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THESE two habeas corpus petitions (Nos. 1203 and 1204 of 1986) filed by Gura Masih and Bhira Masih respectively, who are brothers, are being disposed of together being inter-linked.

(2.) THE petitioners in these two cases were arrested on July 20, 1984 and 5 kgs. of opium, each was recovered from them. In this connection FIR No. 227 of the same date was registered against them under Section 9 of the Opium Act in Police Station, Lopoke. On investigation it was revealed that they had been indulging in smuggling of goods by crossing Indo-Pakistan Border from the middle of March to the date of their arrest in July, 1984. Detention orders under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, were passed against them by the State Government. The order against Gura Masih was passed on July 1, 1985 whereas the order against Bhira Masih was issued on June 10, 1985 (Annexure P.1 in both cases). Each of them has assailed the validity of the detention order in the writ petition filed by him.

(3.) TAKING the case of Bhira Masih first, it is revealed from the return filed by the State of Punjab that his representation dated July 1, 1986 was received by the State on July 2, 1986. Since his case was to be heard by the Advisory Board on July 3, 1986, and 5th and 6th July, 1986 were holidays, the representation was sent to the District Authorities on July 8, 1986. The comments of the District Authorities were received after ten days on July 18, 1986 after a reminder was issued on July 14, 1986. No explanation has been offered as to why the District Authorities took such a long period to send the comments. After the receipt of the comments the representation was examined at various levels till August 14, 1986. The representation remained unattended from 28th to 31st July, 1st, 4th, 7th and 11th to 13th August, 1986. Thereafter the representation was rejected August on 28, 1986 but no action was taken thereon from 18th to 22nd and then on 25th and 26th August, 1986. No explanation has been offered by the State Government in this respect. In similar circumstance the Supreme Court had set aside the detention order in Harish Pahwa v. State of Uttar Pradesh and others, 1982 CLR 65.