SUKHBIR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The petitioner assails his detention in pursuance of order dated 20/3/1987, Annexure p-1, passed under section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities, Act, 1974 (for short the Act). The material part of it reads: Whereas the Governor of Punjab is satisfied that you Sukhbir Singh r & 0 44/C. Gopal Nagar, Majitha Road, Amritsar, have been engaging in concealing or keeping smuggled goods and dealing in smuggled goods, and therefore, it is necessary to make an order directing that you Sukhbir Singh be detained with a view to preventing you from indulging in the above mentioned prejudicial activities in future.

(2.) As per the grounds of detention, Annexure P. 2, the order is concededly founded on the two alleged prejudicial activities of the petitioner dated 15-9-1985 and 7-10-1986 when some smuggled good and foreign currencies were recovered from his possession by the Customs authorities. It is also not in dispute that for the first activity dated 15-9-1985, no case of any sort was registered against him though for the second he is being prosecuted for the violation of the various provisions of the Customs Act, 1962 and Import/Export Control order read with Import- Export Control Act, 1947. The challenge to this order of detention is on two counts. (i) it suffers from non-applicability of mind and (ii) the delay that had occurred between the last prejudicial activity of the petitioner and the date of passing the order and then in its execution by actually taking the petitioner into custody is indicative of the fact that the satisfaction of the detaining authority as recorded in the order was not genuine or well merited.

(3.) So far as the first aspect of the matter is concerned, the contention of Mr. Mattewal the learned counsel for the petitioner is that by the time the- impugned - order was passed on 22-12-1986, the petitioner had applied and been released on bail by the Court in the case referred to above and this aspect was not taken into consideration by the detaining authority. In other words the stand of the learned counsel is that the pendency of the proceedings against the petitioner in a Court of law and the stage the same had reached, more particularly the factum of bail having been granted to him, were not present to the mind of the detaining authority and this by, itself is good enough an indication that the said authority never applied its mind to the facts of this case earnestly as it should have. According to the learned counsel, the order appears to have been passed just mechanically. In order to sustain this stand of his he places firm reliance on Harbajain Singh v. State of Punjab & Ors,1 and Anant Sakharam Raul v. State of Maharashtra & anr.2 Having perused these judgments, I find considerable merit in this stand of the learned counsel. Though in the reply filed on behalf of the respondent authority it has been repeated ad-neuseam that it applied its mind before passing the impugned order, yet the factual averments made by the petitioner in this regard with regard to the pendency of the judicial proceedings against him and his having been granted bail etc. have not been adverted to at all. In some what similar circumstances it -has been observed by their Lordships of the Supreme Court in Anant Sakharams case (supra): There is absolutely no mention in the order about the fact that the petitioner was an under- trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention. It is thus apparent that the case of the petitioner is completely covered by these observations made by the final Court.