Balwinder Singh vs State of Punjab

A.P. Chowdhri. J.

JUDGMENT of detention Annexure P2 dated October 28, 1988, under section 3(2) read with section 14A (1) and 14(2) of the National Security Act, 1980 was passed against the petitioner by the Central Government. According to the grounds of detention, Annexure P3, the petitioner alongwith four others named in the grounds of detention were apprehended by a naka party of the police in village Genwal, Police Station Narot Jaimal Singh, District Gurdaspur, on June 28, 1988, while the former were going towards Pakistan. On personal search the petitioner was found in possession of one/32 bore revolver with six live cartridges and some secret documents and maps of army deployment in India. On interrogation the petitioner disclosed that he and his aforesaid companions were going over to Pakistan to bring arms and ammunition for supplying the same to the extremists in Punjab. Incriminating arms and documents were also recovered from other companions of the petitioner. A case FIR No. 32 dated June 28, 1988, was registered against the accused person under various provisions of the Terrorist and Disruptive Activities (Prevention) Act, Arms Act and Official Secrets Act etc.

The order of detention, Annexure, Pl, was initially passed by the District Magistrate, Gurdaspur, on October 18, 1988, which, was in turn replaced by the impugned order Annexure P2.

Return was filed by way of affidavit of Shri V.V. Vhadha, Under Secretary to Government, Punjab. The grounds on which the JUDGMENT of detention was assailed were traversed. It was stated that there was no undue delay at any stage in processing the case and explanation was offered for the time taken in passing the order of detention and decision of the representation.

The order of detention has been assailed on three main grounds. These are :

Lack of application of mind,

delay in passing the order of detention; and

delay in considering the representation made by the petitioner.

With regard to the first ground, it was argued that no application for bail was moved on behalf of the petitioner and yet it was stated in paragraph 4 of the detention order that the petitioner was taking steps to get himself released from custody as per information received from reliable sources and there was every likelihood of his being released from custody in which case he was likely to resume prejudicial activities in future and thus there was compelling necessity to pass the order of detention. It was argued that as no application for bail had been moved, what was stated in paragraph 4 was a meaningless statement indicating lack of application of mind. In the return, it is not disputed that no application for bail had been moved by the petitioner. No other facts and circumstances have been disclosed which would even broadly support the statement that the petitioner was taking steps to secure his release from custody or that he was likely to be released. Learned counsel appearing for the State obtained the whole Government record relating to this case and he was unable to point out any material to justify the above observation made in the detention order. Learned counsel, however, tried to ge, over the difficulty by contending that the expression `compelling reasons'' as used by their Lordships of the Supreme Court in Smt. Shashi Aggarwal v. State of Uttar Pradesh, 1988(1) Recent Criminal Reports 579, AIR 1988 Supreme Court 596, and in some later decisions, only implied that the nature and seriousness of the allegations, made against the detenu were such that the detaining authority was subjectively satisfied about the necessity of passing the order of detention even though it was aware that the detenu was already in custody in connection with the criminal case against him. In other words, compelling reason had to be looked for in the order of detention and the supporting material. These reasons could not exist outside the grounds already furnished to the detenu. He placed reliance on an unreported decision in State of Punjab v. Surjit Singh and another, Criminal Appeals Nos. 541546 of 1989 decided by the Supreme Court on August 16, 1989. The detention orders in a number of writ petitions were quashed by this Court mainly on the ground that while the detaining authority had mentioned in the grounds of detention its awareness of the fact that the detenu was already in custody in connection with a criminal case against him, further requirement of compelling reasons why the order of detention was nevertheless necessary were not indicated in the order of detention. In coming to the above conclusion this Court relied upon Ramesh Yadav v. District Magistrate, AIR 1968 Supreme Court 315 and Binod Singh v. District Magistrate, 1986(4) SCC 416. The State of Punjab filed special leave petitions in the Supreme Court. The Special Leave Petitions were allowed and their Lordships of the Supreme Court observed that the decisions in Ramesh Yadav''s case (supra) and Binod Singh''s case (supra) had been explained in subsequent cases, namely, Poonam Lata v. M.L. Wadhawan, 1987(2) RCR(Crl.) 100 (SC) : 1987(4) SCC 48 and Vijay Kumar v. Union of India and another, 1988(1) Recent Criminal Reports 602 : 1988(2) SCC 57 . In Poonam Lata''s case (supra) it was explained, "the fact that the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order of preventive detention. What is necessary in a case of that type is to satisfy the Court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order or detention became necessary" (emphasis added). In Vijay Kumar''s case 1988 (1) Recent Criminal Reports 602 (supra) it was observed. "there must be material for such compelling reasons and the material or compelling reasons must appear from the grounds of detention that will be communicated to the detenu." After quoting from the above decisions, it was held "the compelling reason for preventive detention has to be gathered from the grounds of detention and not by anything else. If the activities of the detenu as disclosed from the grounds of detention call for his preventive detention, nothing prevents the detaining authority to exercise his power to put the same person under preventive detention also. It may not be necessary in such cases to indicate that there would be an immediate possibility of the detenu being released. It may not be possible for the detaining authority to watch every step of the undertrial prisoner for securing bail order. The omission to indicate such material will not be fatal to the detention order if it is otherwise justified by the nature of grounds of detention." According to the apex Court, therefore, it was not possible for the detaining authority to watch every step of the undertrial prisoner for securing bail order. It was not necessary to indicate that there was an immediate possibility or the detenu being released and omission to give such an indication was not fatal to the detention order, if the detention was otherwise justified by the nature of grounds of detention and that compelling reason for the preventive detention had to be gathered from the grounds of detention and not from anything else. I am afraid that the above authority does not apply to the facts and circumstances of the case under consideration. In the present case, it is not that the detaining authority failed to specify the compelling reason. If that were so, the present case would have been squarely covered by the authority relied upon by the learned counsel for the State. In fact the detaining authority state in para 4 of the detention order that it was learnt from reliable sources that the detenu was taking steps to secure his release and that there was possibility of his succeeding and, therefore, there was compelling reason to order his detention. If follows that the statement made in para 4 of the detention order namely, that the detenu was taking steps to secure his release and he was likely to be released was not factually true and meaningless. This was evidently vital fact which could materially influence the decision of the detaining authority one way or the other. The said statement cannot be dismissed as one made in routine. The fact that the detaining authority allowed such a significant statement to pass unnoticed shows lack of application of mind. The petition must, therefore, succeed on the above short ground.

In view of what has been stated above, it is not necessary to go into the remaining grounds. For the foregoing reasons, the detention order in question is set aside and it is directed that the petitioner shall be set free at once if not required to be detained in connection with the aforesaid criminal case or in any other case against him.