AMRIK SINGH @ MIKA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner has been detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, the Act) for a period of two years vide order dated September 4, 1985. This order and the grounds supporting the same are Annexure P.1 to this petition. He was actually taken into custody on November 1, 1985. As per these grounds he has indulged in smuggling activities, i.e., smuggling of opium from Pakistan to India from the month of April, 1984 to September 1, 1984. He was arrested on September 12, 1985 in case under the Arms Act for being in possession of a 12 bore country made pistol and cartridges. During the course of interrogation September 16, 1984, in the Interrogation Centre, Amritsar, he is stated to have divulged the details of the above noted activities enumerated in the grounds of detention, Annexure P.1. These details show that in April, 1984 he alongwith one Sukhdev Singh alias Sukha smuggled 20 kg. of opium from Pakistan to India. Similarly he and Sukhdev Singh smuggled 25 kg. of opium on May 1, 1984 and then 30 kg. in the end of May, 1984. Lastly they smuggled 25 kg. of opium on September 1, 1984. This time they also smuggled into the country a gun and four cartridges. It is further mentioned in these grounds (No. 7) that while the petitioner, Sukhdev Singh his associate and one Maqsood were trying to cross the border on September 1, 1984, the latter two were apprehended by the police and the petitioner managed to escape. At that time Maqsood was carrying a revolver, 25 cartridges and 20 kg. of opium on his person whereas Sukhdev Singh was carrying only 5 kg. of opium. The petitioner, as already indicated, was apprehended on September 12, 1985 in a case under the Arms Act, i.e., FIR No. 394 dated September 12, 1984.

(2.) THE primary challenge of the learned Counsel for the petitioner to the above noted detention is on the ground that there was no proximity which could provide a rational nexus between the prejudicial activities of the petitioner as detailed above and the impugned order of detention. According to the learned Counsel, the delay that had occurred between those activities and the passing of the impugned order is fatal to the plea of subjective satisfaction. He maintains that the Detaining Authority had completely failed to take notice of the time lag that had occurred between the alleged prejudicial activities and the passing of the impugned detention order. In support of his plea that for the said reasons the detention order cannot be sustained, he seeks firm reliance on tan earlier judgment of mine in Criminal Writ Petition No. 1205 of 1986 (Bhargu Masih v. State of Punjab, 1987(1) Recent Criminal Reports 540 etc.) decided on January 15, 1987. In that case too the time lag between the alleged prejudicial activities and the passing of their detention order like the case in hand was about one year.

(3.) ALL that has been said on behalf of the respondents in the form of an affidavit of Shri V.V. Chadha, Under Secretary to Government, Punjab, Home Department, is that "the order of detention was passed after the case was duly proceeded by the sponsoring authority which took time, followed by detailed consideration of the facts nd circumstances, bearing on the proposed detention at different stags at Government level, which also took time." In order to explain this plea further, Mr. Saron, learned Assistant Advocate General appearing for these authorities has produced before me the relevant record wherefrom I find that after the interrogation of the petitioner in the Arms Act case on September 16, 1984, a proposal was initiated by the Senior Superintendent of Police, Amritsar, for the first time on February 20, 1985, for the detention of the petitioner under the Act. This proposal was endorsed by the Deputy Commissioner of the District to the Government on February 26 and the same was received in the State Secretary on February 28, 1985. When the matter was examined by legal experts (Assistant District Attorney and District Attorney) in the CID Department of the State Government, it was specifically mentioned in their note at No. 9 that "the delay in the submission of the proposal from the date of the last activity be explained please." Strange as it may look, no authority at any level thought of looking into this aspect of the matter or meeting the said objection. The entire subsequent consideration to which a reference has been made in the affidavit of Mr. Chadha, the relevant part of which has already been reproduced above, indicates that the file had only been passing from one hand to another with the initials of the authority through whose hands it passed. Even the Detaining Authority while passing the impugned order on August 31, 1985 though noticed the grounds of detention in detail yet failed to take any note of the delay that had occurred by then in passing the impugned order. It appears that the whole process has been gone through mechanically without seeing at any stage as to whether the time lag that had occurred subsequent to the last mentioned activity of the petitioner in September, 1984, could in any way indicate that either he had abandoned these activities or was no more indulging in such activities. In the absence of such a consideration the impugned order, to my mind, appears to be punitive than preventive. It has repeatedly been laid down by this Court as well as the final Court that the purpose of passing detention orders is not to punish the detenu for his activities in the distant past but is rather to prevent him from carrying on the activities which are otherwise found to be prejudiced under the Act.