A detention order passed after a delay of 5 months, without application of mind by the detaining authority, and which is punitive rather than preventive in nature, is invalid.

G.S. Chahal, J. - Raghubir Singh petitioner who is presently confined to Central Jail, Amritsar, by means of this Cr. W.P. under Articles 226/227, Constitution of India, seeks a writ in the nature of Habeas Corpus for his release by quashing the detention order No. 1/3/92-3 HIII (COFEPOSA)/56 dated 8.1.1992,passed by respondent-1, based on the ground of detention, Annexure P2, the same being illegal.

2. The facts on the basis of which, the petitioner was detained, may be gathered from the grounds of detention Annexure P2.

3. On 5.7.1991, at 7.30 a.m., on the basis of an information, the Customs Preventive Staff, Amritsar organised a Naka near Sarna Crossing, Tehsil Pathankat. Truck with registration No. DL IG-3858, which was coming from the direction of Jammu, was signalled to stop, but the driver accelerated the same and fled away. It was given a hot chase on Government vehicle and was forced to stop near Jhakolari railway crossing. The driver and the cleaner ran away, abandoning the vehicle. However, the petitioner and clearner were arrested. The name of the clearner was confirmed to be Jasbir Singh. On being interrogated, the petitioner disclosed the existence of a secret cavity made in the truck which contained 4 bandoliers (Vansalies) made of cloth, each vansali containing 100 gold biscuits with foreign markings. The petitioner, Jasbir Singh unscrewed the cover of the secret cavity and showed 400 gold biscuits in the Vansalies which were restored at the same place. The truck, the petitioner and Jasbir Singh were brought to the Customs House, Amritsar where independent witnesses were joined and rummaging of the said truck was carried out. In that search, 4 bandoliers of cotton cloth were recovered from the secret cavity, which, on opening, revealed 100 gold biscuits. Registration Certificate of the truck in the name of Ajit Singh, issued by the Director of Transport, Delhi and two road Toll, Lower Mirnda receipts were recovered. The petitioner and Jasbir Singh could not produce any evidence in support of their legal acquisition/possession/transportation of the contraband gold biscuits. The gold was got weighed, tested and valued from two dealers and it was found to be of the puriety of 24 carats, weighing 46.656 grams and valued at Rs. 1,95,95,520/-. Since the goods were found to be smuggled into India, the gold, along with the truck and other articles, were seized and taken into possession. On 5.7.1991, the petitioner made a voluntary statement before the Customs Authorities and confessed recovery of 400 gold biscuits, with foreign markings, in the manner stated above. Description of the manner in which he indulged in the transportation of the smuggled goods was also given by him. He further disclosed that the gold recovered had been placed in the secret cavity by Fakira, who had thereafter left for Pathankot on a motor-cycle. Jasbir Singh made a voluntary statement on 2.7.1991 and also confessed the recovery of 400 gold biscuits, aforesaid. It is on account of his activities of engaging in transportation of smuggled goods that the impugned detention order was passed.

4. The petitioner has challenged the detention order on the basis that after his arrest, he has remained in custody and was never allowed bail. However, in the impugned detention order, Annexure P1 it has been stated that the petitioner was on bail and this fact would show that the detaining authority did not apply its mind to the facts of the case and the order had been passed on a cyclostyled preforma without going through the facts of the case. The documents relating to the order of rejection or grant of bail were not made available to the petitioner. The prejudicial activity is dated 5.7.1991 and the detention order passed on 8.1.1992. There is no explanation of the delay in the passing of the detention order. The activity had become stale and the detention order is thus, punitive rather than preventive in nature. Since the bail application of th