PETITIONER:
HARNEK SINGH
Vs.
RESPONDENT:
STATE OF PUNJAB & ORS
DATE OF JUDGMENT09/12/1981
BENCH:
KOSHAL, A.D.
BENCH:
KOSHAL, A.D.
SEN, A.P. (J)
ERADI, V. BALAKRISHNA (J)
CITATION:
1982 SCC (1) 116
ACT:
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act 1974, S. 3(1)-Detention order-
offences committed by detenu in February 1980-Prosecution
initiated under Penal Code-Detenu on bail and appearing
before Magistrate from February 1980 to July 1981-Detenu
taken into custody only in July 1981-Detention assailed in
Court-Detention whether illegal and invalid.
HEADNOTE:
The brother of the petitioner had been detained under
sub-section (1) of Section 3 of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act 1974. In
the writ petition to this Court under Article 32 it was
contended that a case covering offences under Sections
307,411 and 414 of the Indian Penal Code was registered
against the detenu, that those offences were the only acts
which formed the basis of the detention order and that there
is consequently no nexus between the unlawful activity
attributed to the detenu and his incarceration.
Allowing the writ petition,
^
HELD: 1. The detention takes the character of punitive
rather than preventive action, and is therefore vitiated.
[141 A]
2. No reason has been put forward for the detenu not
being taken into custody in pursuance of detention order
right from January 2,1981 till July 10, 1981 although be
appeared in Court on all the days of hearing fixed by the
Magistrate during that period. [140 H; 141 A]
3. The offences which are said to have been committed
by the detenu as far back as 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 about a year and a
half. No explanation has been furnished by the State as to
why action under the Act was not taken at the earliest
possible after the alleged commission of the offences which
are the foundation of the grounds for detention. [140 F-G]
JUDGMENT:
ORIGINAL JURISDICTION . Writ Petition (Criminal) No.
7444 1981.
140
(Under article 32 of the Constitution of India)
Hajinder Singh for the Petitioner.
O.P. Sharma M.S. Dhillon and R.N. Poddar for the
Respondent.
The Judgment of the Court was delivered by:
KOSHAL J. In this petition under Art. 32 of the
Constitution of India seeking the issuance of a writ of
habeas corpus, the prayer made by the petitioner is that his
brother, Narinder Singh, who has been detained in pursuance
of an order dated 4th November, 1980 passed under sub-sec.
(I) of sec. 3 of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 be released
from custody. The main ground urged in support of the
petition is that there is no nexus between the unlawful
activities attributed to the detenu and his incarceration.
That ground we do not find to be without substance. A case
covering offences under sections 307, 411 and 414 of the
Indian Penal Code, amongst others, was registered against
the detenu at Police Station Lopoke in Amritsar district on
27th February, 1980 and those offences are the only acts
which form the basis of the impugned order Those acts are
also the subject-matter of a prosecution launched against
the detenu, proceedings in relation to which have been going
on in the Court of an Amritsar Magistrate. During those
proceedings the detenu was on bail and was appearing in
court on every hearing right from January 2, 1981 till he
was put behind the bars on 10th July, 1981 in pursuance of
the impugned order. We are clearly of the opinion that
offences which are said to have been committed by the detenu
as far back as 27th February, 1980 could hardly form a
ground for his detention on a date as late as 10th July,
1981, the gap between the two being well-nigh a year and a
half. No explanation at all has been furnished on behalf of
the State as to why action under the Act was not taken at
the earliest possible after the alleged commission of the
offences which are the foundation of the grounds for
detention. In our opinion, the charge is so stale in
relation to the detention as not to have any real connection
with it. It is further noteworthy that no reason is put 11
forward for the detenu not being taken in custody in
pursuance of the impugned order (for which the detaining
authority was moved in the first instance by the Senior
Superintendent of Police, Amritsar)
141
right form January 2, 1981 till July 10, 1981 although he
appeared in Court on all the dates of hearing fixed by the
Magistrate during that period. In these circumstances the
detention takes the character of punitive rather than
preventive action and is therefore vitiated. Accordingly we
strike down the impugned order and direct that the detenu be
released from custody forthwith.
N.V.K. Petition allowed.
142