http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

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:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

    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