HARNEK SINGH v. STATE OF PUNJAB & Ors.

Allowing the writ petition, - ,, '~\ HELD : I. The detention takes the character of punitive rather than pre ventive 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 IO, 1981 although he appear~d 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 iate 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] .._ ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 7444 pf 1981. B c D E F G A B c D E G H 140 SUPREME COURT REPORTS (1982] 2 s.c.a. (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 Res pondent. 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 petitoner is that his brother, Narinder Singh, who has been detained in pursuance of an order dated 4th November, 1980 passed under sub-sec. (1) cf 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 the detenu and his incarceration. That ground we do not find to be without sub!1tance. 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 th(: 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 impugned order. We are 10th July, 1981 in pursuance of the clearly of the opinion that offenc:es which are said. to have been committed by the detenu as far back as 27th February, 1980 could hardly form a ground for his detiention 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 dete:ntion as not to have any real con nection with it. is put 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) It is further noteworthy that no reason - ,,.. HARNEK SINGH v. PUN.JAB (Koshal, i.) i41 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 In these circumstances that period. therefore character of punitive rather than preventive action and is vitiated. Accordingly we strike down the impugned order and direct that the detenu be released from custody forthwith. the detention • N.V.K. Petition allowed. A 8 -· - ,, . --'\