Amrik Singh vs State of Punjab .

S.D. Bajaj, J.

Criminal Writ Petition No. 1851 of 1988 his been filed by the detenu Gurnam Singh for quashing the detention order Annexure P.2 dated 1731988 on the grounds that he was held in custody With effect from 14121986 and could not, therefore, indulge in any prejudicial activities thereafter, that at the time of his alleged release from Raipur Jail on 1211988, custody of the petitioner was made over by the Raipur Jail Authorities to Inspector Jaimal Singh of Gurdaspur police in Punjab State for investigation of First Information Report No. 122 dated 3081986 registered against the petitioner in Police Station, Dera baba Nanak, under section 307 of the Indian Penal Code, section 15 of the Arms Act, sections 3/34/20 of the Indian Police Act and sections 3 and 4 the T.D.A. (P) Act, that clamping of the impugned order of detention on the petitioner on 1731988 while he was still in custody from 14121986 onwards is wholly mechanical and without any application of mind by the detaining authorirty that there was no proximity between the alleged occurrence. of 30. 8. 1986 and the detention order of 1731986 and that the impugned order is wholly mechanical passed without any application of mind by the detaining authority; much less its subjective satisfaction.

In reply the State asserted that coaccused of the detenu in case First Information Report No. 122 dated 3081986 named Kuldip Singh and Joginder Singh had disclosed to the police about the involvement of the petitioner therein only in November, 1987 and, therefore, the impugned detention order was validly passed on 1731988, that the detention order was passed by the detaining authority on its subjective satisfaction after due application of mind and the special grounds justifying further detention of the petitioner for a period of two years beyond 17.3.1988 were duly mentioned in Annexure P.3 (grounds of detention) supplied to the petitioner along with detention order Annexure P.2. It was, thus asserted that there was no justifiable reason to quash the order of detention.

I have heard Shri Navkiran Singh, Advocate, for the petitioner, Shri S.S. Saraon, A.A.G. Punjab for the State and have carefully. perused the record.

The myth of the detaining authority having applied its mind or of its subjective satisfaction gets wholly exposed from the contents of the note recorded by the dealing Assistant Amrik Singh in this case on 16.9.1988 which reads :

"This concerns the recommendations of the Advisory Board in the detention case of NSA detenu Amrik Singh son of Shri Gian Singh, r/o Shahpur Goraya, P.S. Dera Baba Nanak, District Gurdaspur. The Advisory Board have found that there is sufficient cause for the continued detention of the above named detenu. The case was sent by the Department to Government for confirming the order of detention in view of the advice of Advisory Board. Since the date of detention and the period of detention were not indicated clearly in the proposal sent by the Department, the file was marked to DIG Intelligence 11 for intimating the same clearly. In this connection noting of the Department at pages 912, ante may kindly be seen. The Legal Agency of CID have opined that the period of detention may be fixed as two years from, the date of detention i.e. 2131988 though the Advisory Board have opined that the period of detention of oneyear commencing from 21.3.1988 will meet the ends of justice more so when the detenu has been in prison for more than 20 months and there is no fresh activity on his part. The State Law Department has also advised that the period of detention be fixed as two years from the date of detention. It is further pointed out that the Legal Agency of CID have mentioned in its note the date of detention as 2131988. But in the Proforma `A'' now received from SSP Gurdaspur, it has been mentioned that the detention order was executed on the detenu on 2231988. Therefore the order of detention is to be fixed from 22.3.1988 as the date of detention mentioned in proforma `A'' is considered more authenticated.

In view of the report of Advisory Board, the order of detention may be confirmed and the period of detention may be fixed as two years from the date of detention i.e. 2231988 as adviced by the State Law Department. DFA 111. Sd/Amrik Singh (from p8 ante). 1691988.

SH III

Sd/

19.9.88

US II

The order of detention may be confirmed and the period of detention may kindly be fixed as 2 years as proposed by office at p13 ante.

Sd/

19.9.88

SSH (on tour) F/H

Sd/

Sd/ 19.9.88

SH III HIII" It. is thus apparent that the impugned detention order is based on the opinion of the Legal Agency of the CID and the advice tendered by. the Law Department of Punjab State and not on any subjective satisfaction of the detaining authority. It is, therefore. vitiated on this score.

Even otherwise also detention of the petitioner ordered on 1731988 on the basis of occurrence dated 3081986 after a lapse of more than 1 1/2 years is not legally sustainable in terms of the observations made in Hari Singh v. State of Punjab and others, 1987(1) Recent Criminal Reports 676 and Narinder Singh v. Union of India and others, ? Criminal Law Journal 227. The inordinate delay is fatal to the detention of the petitioner.

In result criminal writ succeeds and is allowed. Detention order Annexure P.2 is quashed and the petitioner is ordered to be set at liberty forthwith.