Holding

Detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act is invalid where the delay between the alleged offence and the taking of the detainee into custody renders the detention punitive rather than preventive.

Summary

The petitioner filed a writ under Article 32 seeking the release of his brother, Narinder Singh, who had been detained under sub‑section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The only basis for the detention was a case registered for offences under IPC Sections 307, 411 and 414 on 27 February 1980, for which the detainee was on bail and appeared before the magistrate from 2 January 1981 to 10 July 1981. The Court observed that the detention order, dated 4 November 1980, was executed only on 10 July 1981, creating a gap of over a year and a half with no explanation for the delay, despite the detainee’s regular court appearances. It held that such a delay rendered the detention punitive rather than preventive, violating the purpose of the Act. Consequently, the detention order was struck down and the petitioner’s relief was granted, ordering the immediate release of the detainee.

Issues considered

Whether detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is valid when there is a substantial delay between the alleged offence and the taking of the detainee into custody.
Whether the detention in the present case is punitive rather than preventive, thereby rendering it invalid under the Act.
Whether the lack of a nexus between the alleged offences and the detention order invalidates the detention.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1)
Indian Penal Code, 1860s. 307, s. 411, s. 414

Subjects

preventive detentionpunitive detentionforeign exchange actArticle 32habeas corpusstale chargesdetention orderconstitutional law

Judgment

- HARNEK SINGH
i39 A

v.

STATE OF PUNJAB & ORS B

December 9, 1981

(A.D. KoSHAL, A.P. SEN AND V. BALAKRISHNA
ERADI, JJ.]
c
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act
1974, S. 3(1)-Detention Order-Offences committed by detenu in February 1980-
Prosecutlon 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.
D
The brother of the petitioner had been detained under sub-section (l) 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 conse-
quently no nexus between the unlawful activity attributed to the detenu and his E
incarceration.

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,
F

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 G
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]

ff
ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 7444
pf 1981.
140 SUPREME COURT REPORTS (1982] 2 s.c.a.

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.
B
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
c 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
D attributed to 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
E 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 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
G 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. It is further noteworthy that no reason is put
forward for the detenu not being taken in custody in pursuance of
H
the impugned order (for which the detaining authority was moved
in the first instance by the Senior Superintendent of Police, Amritsar)
HARNEK SINGH v. PUN.JAB (Koshal, i.) i41

right form January 2, 1981 till July 10, 1981 although he appeared A
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.
• 8

N.V.K. Petition allowed.

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