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PUNJAB & HARYANA HIGH COURT
Nirmal Yadav, J.
Paramjit Singh @ Pamma
Versus
State Of Punjab
Criminal Writ Petition No. 30 of 2006,
Decided On : APRIL 18, 2006
COFEPOSA - Challenge to detention order under COFEPOSA - Section 3(1) of COFEPOSA Act - Summary of Acts and Sections: COFEPOSA Act, 1974 - Section 3(1) - The judgment discusses the grounds of detention, acquittals, untraced reports, delay in passing the detention order, and the subjective satisfaction of the detaining authority. The court highlights the importance of disclosing material and vital facts to the detaining authority and the impact of non-disclosure on the detention order. The judgment emphasizes the need for subjective satisfaction and the consequences of non-application of mind by the detaining authority.
Fact of the Case:
The detenu challenged the detention order under COFEPOSA, citing illegal detention and abuse of process of law. The order was based on the detenu's involvement in smuggling activities over the last three decades, with various cases registered against him. The detenu submitted a representation against the order, citing acquittals and untraced reports in several cases.
Finding of the Court:
The court found that the detaining authority was not made aware of the acquittals and untraced reports, which would have influenced the detention order. The court also noted the unreasonable delay in deciding the representation, which reflected adversely on the bona fides of the detaining authority's subjective satisfaction. The court set aside the detention order due to the withholding of material facts and the unreasonable delay.
Issues: The issues included the non-disclosure of acquittals and untraced reports to the detaining authority, the impact of delay in deciding the representation, and the subjective satisfaction of the detaining authority.
Ratio Decidendi: The judgment established that the detention order would be vitiated if material and vital facts influencing the detaining authority's decision are not disclosed. It emphasized the importance of subjective satisfaction and the consequences of non-application of mind by the detaining authority.
Final Decision: The petition was allowed, and the impugned detention order was set aside, directing the detenu to be set at liberty forthwith.
Nirmal Yadav, J.
1. Through this Criminal Writ Petition under Articles 226/227 of the Constitution of India, the detenu Paramjit Singh @ Pamma, who is presently detained in Central Jail, Bathinda, has challenged the order of detention dated 10.11.2005 (annexure P-1) passed by Secretary to Government of Punjab, Department of Home Affairs & Justice, Chandigarh, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA) being illegal and abuse of process of law, with a further prayer to release him from illegal detention. The order of detention was passed on the ground that the Secretary to Government of Punjab, was satisfied that the detenu Paramjit Singh had been abetting the smuggling of goods, therefore, it was necessary that he be detained with a view to prevent him from indulging in aforementioned activities in future. The grounds of detention were also supplied to the detenu with the impugned order. The detenu submitted representation (Annexure P-9) against the impugned order on 1.12.2005, to the Government of India as well as to the Punjab Government which were rejected vide order dated 7.2.2006 (Annexure R-3) by the Punjab Government and vide order dated 6.2.2006 (Annexure R-4) by the Central Government.
2. Before adverting to the arguments raised by learned counsel for the petitioner, I would like to reproduce the relevant portion of grounds of detention, which read as under :-
"You remained involved in smuggling/criminal activities in connivance of Pak smugglers during the last three decades. A large quantity of smuggled articles like gold, narcotics and arms/ammunition were recovered from your possession during your criminal career as a result of which following cases were registered against you :-
(1) FIR No. 130 dated 11.3.1973 u/s 307 IPC, 25 Arms Act, 3/12/15 I.P. Act, 123 Custom Act, PS Lopoke, Police District Majitha.
(2) FIR No. 185 dated 23.5.1976 u/s 3 Official Secret Act, 42/43 DIR PS Division No. C, Amritsar.
(3) FIR No. 99, dated 16.4.1976 u/s 302/364/365/148/149/120-B IPC PS Gharinda, district Amritsar.
(4) FIR No. 189, dated 15.7.1976 u/s 307 IPC, 25 Arms Act, PS Lopoke, PD Majitha.
(5) FIR No. 380, dated 20.6.1978 u/s 9/1/78 OP Act, PS Sadar, Amritsar.
(6) FIR No. 179, dated 20.5.1979 u/s 9/1/78 OP Act, P.S. Lopoke, PD Majitha.
(7) FIR No. 180, dated 20.5.1979, u/s 25 Arms Act, PS Lopoke, PD Majitha.
(8) FIR No. 66, dated 18.2.1986, u/s 61/1/14 Excise Act, PS Lopoke, PD Majitha.
(9) FIR No. 198, dated 17.7.1986, u/s 25 Arms Act, PS Lopoke, PD Majitha.
(10) FIR No. 45 dated 28.2.1989 u/s 411/414 IPC, 25 Arms Act, 18/61/85 NDPS Act, TDP Act, PS Civil Lines, Amritsar.
(11) FIR No. 7 dated 23.1.1991 IPC, IP Act, F Act 3 OS Act, 18/61/85 NDPS Act, Arms Act, PS Lopoke, PD Majitha.
(12) FIR No. 122 dated 10.12.1994, IPC 25 Arms Act, 3 OS Act, 18/61/85 NDPS Act, PS Lopoke, PD Majitha.
(13) FIR No. 163 dated 9.8.1995, u/s 411/414 IPC, 25 Arms Act, 18/61/85 NDPS Act, 3 OS Act, PS Lopoke, PD Majitha.
(14) FIR No. 4 dated 7.1.1997, u/s 41/414 IPC, 25 Arms Act, 18/61/85 NDPS Act, 3 OS Act, PS Lopoke, PD Majitha.
(15) FIR No. 115, dated 14.2.2003, u/s 489-B, 489-C IPC, PS Basti Jodhewal, Ludhiana.
(16) FIR 336, dated 18.9.1999, u/s 354/506 IPC, PS Sadar, Jalandhar.
(17) FIR No. 73, dated 21.2.2003, under Section 489-B, 489-C IPC, 25 Arms Act, 22/61/85 NPDS Act, PS Sahnewal, District Ludhiana.
(18) FIR No. 229, dated 19.8.2004, u/s 411/414 IPC 18, 21/61/85 NDPS Act, 25 Arms Act, 14 F Act, 3 OS Act, PS Lopoke, PD Majitha.
From the above mentioned and narrated cases, it is clear that you remained involved in prejudicial activities of the last 35 years and may continue such activities in future also. On account of above said activities, the Governor of Punjab is satisfied that you having been possessing, transporting and concealing the smuggled items like gold, narcotics, drugs and FICN. He has passed an order for your dete
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