HARNEK SINGH versus STATE OF PUNJAB & ORS

Citation: [1982] 2 S.C.R. 139 · Decided: 09-12-1981 · Supreme Court of India · Bench: A.D. KOSHAL · Disposal: Case Allowed

Judgment (excerpt)

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HARNEK SINGH 
v. 
STATE OF PUNJAB & ORS 
December 9, 1981 
(A.D. KoSHAL, A.P. SEN AND V. BALAKRISHNA 
ERADI, JJ.] 
i39 
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. 
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 
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, 
1981 although he appear~d in Court on all the days of hearing fixed by the 
Magistrate during that period. (140 H; 141 A] 
A 
B 
c 
D 
E 
F 
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] 
ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 7444 
pf 1981. 
ff 
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 
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 
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 
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 
the impugned order (for which the detaining authority was moved 
in the first insta

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