Pratap Singh vs The Union Of India (Uoi) And Ors.
1986 Latest Caselaw 431 Del

JUDGMENT

M.K. Chawla, J.

1. On 2.8.1984, two brief-cases, one brown coloured and another black, suspected to contain contraband were found lying in the Air India Export Cargo examination hall of Air India. Both the brief-cases were lying on a wooden case without any no., mark or address of consignee and consignor. Shri Neeraj Malik, resident of M-82/B, Malviya Nagar, New Delhi and Shri Nannder Singh, resident of D-5/6, Model Town, Delhi were present on the spot. Shri Neeraj Malik claimed the ownership of the wooden case and informed the Preventive Officers who were making the enquiry stating that he had filed shipping bill no. 34781 dated 2.8.84 for the goods contained in the said wooden case. The two brief-cases mentioned above were found unlocked which were opened and examined and were found to contain 23 packets of different sizes, wrapped in khaki adhesive tape which on opening were found to contain black colour substance "Hashish". The total weight of Hashish was found to be 24.85 Kgs. valued at Rs. 75000/-. As none could produce any authorisation or permission for the lawful export of Hashish, the same was, therefore, seized under Section 110 of the Customs Act Along with brief-cases, packing material and wrappings.

2. Similarly, the wooden case lying nearby and the brief-cases lying nearby and the brief-case carried by Nerraj Malik were also searched and the contents were seized. The entire operation of examination and seizure was conducted in the presence of two independent witnesses and also in the presence of Shri Neeraj Malik and Narinder Singh.

3. In their voluntary statements, Shri Neeraj Malik and Narinder Singh admitted the aforesaid recovery, seizure and other incriminating facts. During their examination, they also named Shri Pratap Singh, the father of Narinder Singh as one of the persons concerned in the illegal export of Hashish. Thereafter, the residential premises of Neeraj Malik and Narinder Singh were sereched but nothing incriminating was recovered. However, some incriminating documents were recovered and seized from the residence and business premises of Pratap Singh.

4. Shri Neeraj Malik and Narinder Singh were placed under arrest under Section 104 of the Customs Act on 3 8.1984, and were produced before A.C.M.M. New Delhi on 4.8.1984 who remanded them to judicial custody till 13.8.64. Summons were issued to Shri Pratap Singh but he did not join and deliberately avoided the investigation.

5. The samples as drawn out of the seized black powder were sent to Chemical Examiner, I.A.R.I. Laboratory, Pusa, New Delhi for Chemical examination. The Chemical Examiner vide his report dated 17.8.84 confirmed that each of the 23 samples is "Hemp" under the Dangerous Drugs Act, 1930. After completing the enquiry, the Administrator, Delhi Administration, vide his order dated 9.4.1985, under Section 3(1) read with Section 2(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called the Act), ordered the detention of the three named persons with a view to prevent them from smuggling goods out of India vis-a-vis Hashish.

6. The detention orders dated 9-4-1985 were served on Neeraj Malik and Narinder Singh on 12.4.85 while it could only be served on Pratap Singh on 4.4.1986.

7. Narinder Singh filed Criminal Writ Petition No. 193/85 challenging the order of detention under Article 226 of the Constitution of India for an appropriate writ, order or direction for quashing of the detention order. This Writ petition came up for hearing before the Division Bench consisting of Dalip K. Kapur, and N.N. Goswami, JJ. The said writ petition was accepted vide order dated 29.11.85 and the petitioner was set at liberty forthwith. In the said writ petition, the detention order was challenged on two grounds. The first being, that certain documents such as shipping bill, invoice and some pieces of paper containing certain accounts were relied upon in the grounds of detention but copies of the said documents were not supplied to the petitioner Along with the grounds of detention which prevented the petitioner to make an effective representation. The other contention was that the order of detention was based on a solitary incident having taken place on 2.8.84 and the detention order having been made on 9.4.85 was involved on the ground that there was no proximity between the prejudicial activity and the detention order. On consideration of the entire material before the Court, the first contention was not acceded to. However, the second ground was proved to be a forceful one. The Bench came to the conclusion that the Detaining Authority has not furnished any valid explanation from 4.8.1934 to 27.11.84 when the proposal for detention was made and the subsequent delay in the passing of the detention order and its service on the petitioner. In the result, the Rule was made absolute and the petitioner was directed to be set at liberty forthwith unless required to be detained under any valid order of a competent court or authority.

8. The case of the present petitioner is exactly similar to that of Neeraj Malik and Narinder Singh. The order of detention is dated 9.4.1985. The petitioner was served with the cyclostyled grounds of detention Along with the list of documents while he was in jail on 4.4.1986. In the present writ petition, besides other grounds, the petitioner has challenged his defination on the ground of long and unexplained delay in making the order and execution of the same on the petitioner, lie also relied upon the judgment of Narinder Singh in Cr. Writ No. 193/85 which has been referred to above.

9. Without going into the validity of the other grounds of attack, in my opinion, the case of the present petitioner is fairly and squarely covered by the Judgment in the case of Narinder Singh. Prima facie, the incident in question is state one and there has been an unreasonable delay in passing the detention order. Learned Counsel for the respondent has not been able to distinguish the Judgment of the case of Narinder Singh from the facts of the present case.

10. As a result of the above discussion, I hereby accept the petition and direct that the petitioner be set at liberty forthwith unless required to be detained under any valid order of a competent court or authority.