MEHAL SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner Mehal Singh was apprehended by the police on January 29, 1984 near the Railway Station, Ferozepur, and 6 kgs. and 200 grams of heroin was recovered from his attache case and a case was registered against him at Police Station, Ferozepur Cantt. During investigation of the case it was revealed that on January 24, 1984, one Resham Singh persuaded him to join him in smuggling trade and then on January 29, 1984, Resham Singh took him to the house of one Mulkh Raj, where he was introduced to a Pakistani smuggler who handed over to him the attache case containing heroin for being kept in concealment which was subsequently recovered from his possession. In this background a detention order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act), dated February 11, 1985 (Annexure P. 1), was passed against him by the Punjab Government for keeping and concealing smuggled goods. He was eventually arrested and detained in pursuance of this order on May 19, 1986. In this petition the petitioner has challenged his detention.

(2.) THE detention of the petitioner deserves to be quashed on the simple ground that he was actually detained after one year and three months of the passing of the detention order (Annexure P. 1) and there is, no explanation for this delay. The act for which the petitioner was detained was also the subject-matter of a prosecution launched against him. It is not denied that the petitioner has been appearing in Court on every hearing till he was ultimately arrested and detained on May 19, 1986. No explanation has been given for the detenu not being taken in custody in pursuance of the order of detention soon after the order was passed although he was not absconding and was on the other hand appearing in Court on all dates of hearing fixed during that period. In similar circumstances in Harnek Singh v. State of Punjab and others, A.I.R 1982 Supreme Court 682, the detention was considered punitive action and was, therefore, declared vitiated. In that case a case was registered against the detenu on February 27, 1980. For those offences he was ordered on November 4, 1980 to be detained under Section 3(1) of the Act and was put behind bars on July 10, 1981. Those acts were also the subject-matter of a prosecution launched against the detenu. During those proceedings the detenu was on bail and was appearing in Court on every hearing till he was put behind bars. No reason was put forward for the detenu not being taken in custody in pursuance of the order of detention from January 12, 1981 till July 10, 1981 although he appeared in Court on all the dates of hearing fixed during that period. The Supreme Court held that in these circumstances the detention took the character of punitive rather than preventive action and was, therefore, vitiated. It was observed that the offences which were said to have been committed by the detenu as far back as on February 27, 1980, could hardly form a ground for his detention on a date as late as July 10, 1981, the gap between the two being well-nigh a year and a half. It was held that the charge was so stale in relation to the detention as not to have any real connection with it. The facts of the present case are fully covered by the dictum of the Supreme Court in the case of Harnek Singh (supra).