Bhola Singh vs State of Punjab

Ujagar Singh, J.

The petitioner has challenged the detention order dated 20.61988 (Annexure P3), as also the grounds of detention Annexure P4, on various grounds.

Annexure PI is the earlier detention order passed on 961988, alleging that the Director Magistrate, Amritsar was satisfied that the petitioner was residing at 413, Green Avenue, Police Station, Civil Lines, Amritsar and was at present in custody in Central Jail, Amritsar. With a view to preventing him from acting in a manner prejudicial to the Security of State and maintenance of the public order and interference with efforts of Govt. in coping with the terrorist and disruptive activities, it was necessary to detain him. Vide this order, it was directed that the petitioner be arrested and detained in Central Jail, Amritsar where he was presently lodged in judicial custody in a case registered against him. Another ground mentioned is that the petitioner was taking steps to get himself released from the custody and there was every likelihood of his being set at liberty and in that event, he was likely to indulge in prejudicial activities in view of the prime facie, propensity towards such activities and thus, there was a compelling necessity to pass that order. In this order itself, the Senior Superintendent of Police, Amritsar was directed to execute the order and to lodge the petitioner in Central jail, Amritsar where the Superintendent Jail will supply the grounds of detention in Punjabi, along with an English translation thereof and shall also explain the same in his mother tongue. Vide order dated 1061988, Annexure P2 the order of detention Annexure P1 was revoked. This order was sent to the petitioner at his village address. On that very day, another order of detention Annexure P3 was passed, mentioning the earlier order, as well as its revocation and repeating the same satisfaction as was mentioned in Annexure P1. This order also was sent to the petitioner at his village address.

The grounds of detention Annexure P4 show that on 3151988 ASI Mohan Singh received a secret information about the petitioner (with his residential address) and Hardip Singh, supplying the information relating to Indian Army to Pakistan Authorities and in exchange thereof, getting arms, opium and silver etc. from Pakistan smugglers who have connections with extremists andsupply the said arms and ammunition for creating disturbances in Punjab. With this information First Information Report 36 dated 31588 U/ss 411, 413, [PC; S. 25, Arms Act; S.D Official Secret Act and S. 18, N.D.P.S. Act was registered in Police Station 3D Division, Amritsar. In pursuance of the registration of this case on 111988, ASI Mohan Singh, accompanied by other police officials, was present near Lohgarh Gate, Amritsar in connection with the movements of the petitioner and Hardip Singh when the petitioner had gone to the side of Gobindgarh Fort (Military Area), Amritsar and arrested the petitioner in that case. Both the petitioner and Hardip Singh were interrogated on that and they admitted their links with Pakistan Authorities and also admitted having supplied the Military intelligence. The petitioner further admitted his links with extremist groups led by Gurbachan Singh Manochahal and in the first week of Match, 1988 the petitioner and Hardip Singh were present in house No. 413, Green Avenue, Amritsar where said Manochahal, accompanied by 2 persons, came to his house and handed over Rs. 1,00,000/ for bringing arms from Pakistan. The said Manochahal and his companion stayed with the petitioner for the night and were served with meals. Earlier in the morning, next day, the said persons went away from there and at about 8 p.m., the petitioner and Hardip Singh crossed over to Pakistan from the side of Wagha Border and went to the house of Allah Baksh in village Bhasin where the latter handed over to the petitioner 5 AK47 Chinese Assault Rifles with 500 cartridges for Rs. 1,00,000/. The petitioner and Hardip Singh came back at 3 a m. and kept the weapons in their house. The same were delivered to 2 young men sent by Manochahal. Almost similarly the petitioner was stated to have admitted a similar transaction having taken place 2 days after Besakhi.

The order Annexure P3 and the grounds of detention Annexure P4 have been challenged by the petitioner on the following grounds :

(i) The petitioner was forced to make the alleged confession by using thirddegree methods and by forcing him to put thumbimpressions on blankpapers ;

(ii) The brother of the petitioner sent telegrams to the Secretary, Internal Security and the Director General of Police, Punjab for maltreating the petitioner and obtaining his thumb impressions on blankpapers;

(iii) The detaining authority has not considered the facts, contained in i) and ii) aforesaid. Therefore, there was nonapplication of mind;

(iv) On 15/1651988, the elder brothers of the petitioner, i.e. Gurbakhsh Singh and Thakur Singh were taken away into illegal custody by Police Station Sirhali and the petitioner had sent telegrams to the higher authorities. The elder brothers of the petitioner wrote an application for bail in which they clearly stated that the Police officials got their thumbimpressions/signatures on blankpapers under coercion and bail was granted to them on 251988;

(v) Three months prior to the passing of the detention order, a Board, consisting of the Senior Superintendent of Police, Amritsar; Superintendent, Headquarters; Superintendent Customs and CID officers held cld a prolonged meeting and reviewed the cases of the petitioner and one Amrik Singh and came to the conclusion that there was nothing against them which could warrant any action. These facts were not placed before the detaining authority;

(vi) Detention order dated 961988 Annexure PI was passed when the petitioner was already in Jail and therefore, there was no question of the petitioner indulging in prejudicial activities and the imminent possibility of his being released on bail. The detaining authority was also not aware of the fact, whether the petitioner had moved any bail application, or not;

(vii) The detaining authority had directed the Senior Superintendent of Police to lodge the petitioner in Central Jail, Amritsar; Whereas the petitioner was already in jail. The order Annexure P3 is on the same grounds as Annexure P1;

(viii) The petitioner had made a representation on 771987 through Superintendent, Central Jail and this representation was not considered as required by Article 22(5) of the Constitution of India;

(ix) There was a complete nonapplication of mind at the time of passing both the detention orders Annexures P1 and P3;

(x) There was no material before the detaining authority by which it could satisfy that the petitioner would indulge in prejudicial activities if released in future, especially when there was only one isolated incident. That allegation being vague could not support the detention order; and

(xi) The petitioner was not given copies of the statements of ASI Mohan Singh who has allegedly mentioned about the confessional statement.

The aforementioned grounds have been controverted in the reply filedby way of affidavit of Shri V.V. Chadha. Under Secretary to Govt. Punjab, Home Department as under :

(i) The petitioner was not compelled by the police to make confessional statement;

(ii) The cider brothers of the petitioner Gurbakhsh Singh and Thakur Singh were arrested by the Police, but they were not taken into illegal custody. The statements were signed by the petitioner to creat defence. Ultimately the brothers of the petitioner were granted bail by the Court:

(iii) Meeting of the said officers in which no action was recommended is denied;

(iv) Detention of the petitioner in custody is admitted and the likelihood of his being at liberty and thereafter his likelihood of indulging in prejudicial activities etc. and there being compelling necessity have been reiterated

(v) The representation of the petitioner dated 871988 is said to have been received in the Office of the Home Secretary on 11.7.1988, as 9.1071988 itself, representation was sent to the District Magistrate, Amritsar for his comments. Reminders were issued to the District Magistrate on 13/1571988. Comments of the District Magistrate were received on 18.7.1988 and they were examined at various levels. The representation was rejected after due consideration on 2271988. Therefore, there was no delay in considering the representation ; and

(vi) So far as supply of copies of the statements is concerned, it is alleged that all the copies of the documents relied upon were given to the petitioner.

The learned counsel for the petitioner has drawn my attention to the representation sent by the petitioner on 771988. In this representation, almost all the grounds of challenge have been given. This representation was considered only on 2271988 and according to the learned counsel, there is no satisfactory explanation for this delay. The learned counsel has further argued that the petitioner was already in Jail and there was no possibility of his being released on bail. Thus, the fact that the petitioner was likely to be set at liberty and likely to indulge in the alleged prejudicial activities is just imaginary. According to him, there was no compelling reason either.

On the other hand, the learned counsel for the respondents has urged that the adequacy of the grounds of detention cannot be gone into by the Court. It is enough if there are grounds for detention and there was some evidence from which the detaining authority could have subjective satisfaction.

I have considered the argument, as also the facts of the case. Cases R.M. Lohia v. State, 1966(1) SCR 709; Nand Kishore Singh v. State of Bihar, 1995(1) Cr.LJ 796; Harbhajan Singh v. State of Punjab (P&H), 1988(1) Rec. Cr.R. 348 ; Yadvinder Singh v. State of Punjab (P&H), 1988(1) Rec. Cr.R. 419 ; Vijay Kumar v. Union of India, 1988(1) Recent Criminal Reports 602 : 1988 SC 934 ; G.B. Singh v. Govt. of India, 1973 SC 2667; Hemlata v. State of Maharashtra, 1982 SC 8; Anirudha v. District Magistrate, 1987 CRI. LJ 1784; CWP 2775 of 1988, Balbir Singh v. State of Punjab, decided on 361988 and Smt. Shashi Aggarwal v. State of UP & Ors., 1988 1 SVLR (Cr.). I have been referred to by both the sides.

From the order Annexure P3, it is clear that the earlier order dated 961988 was revoked and this order was passed in substitution thereof although the basis remains the same. Paragraph 3 of the order indicates that the detaining authority was satisfied that the petitioner had been acting in a manner prejudicial to the Defence of India, security of State and maintenance of public order and interference with the efforts of the Government in coping with the terrorist and disruptive activities and it was on account of such activities that the detention of the petitioner under the National Security Act, 1980 was considered necessary. This paragraph and averments of paragraph 4 run counter to each other to some extent. Paragraph 3 presupposes that the petitioner earlier was not in detention and because of his alleged activities, his detention had become necessary. Averments in paragraph 4 show that the petitioner was already in custody and had been taking, steps to get himself release from custody. There was every likelihood of his release from custody and in the event of his release, the petitioner was likely to resume the said type of activities. In these circumstances, there was said to be a compelling necessity to pass the detention order. In Shashi Aggarwal''s case (supra) the Apex Court of India has laid down that section 3 of the National Security Act does not preclude the authority from making an order of detention against a person while he is in custody or in jail, but the relevant facts in connection with the making of the order would make all the difference in every case and the validity thereof has to be judged in every individual case on its own facts. It is further observed that there must be material apparently disclosing to the detaining authority in each case that the person against whom an order of preventive detention is being made is already in custody and yet for compelling reasons preventive detention was necessary. Further elaborating, it was held that the possibility of the Court granting bail may not be sufficient, nor a bald statement that the person would repeat his criminal activities, would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order. A reference to Vinod Singh v. District Magistrate, Dhanbad, 1986(4) SCC 416 has been made and therein it was held :

"A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of. the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens."

In Harbhajan Singh''s case (supra), the detenu was already in custody and it was held that the order of detention should not ordinarily be passed on the ground that the detenu was likely, to be released on bail. Rather,. bail should be opposed upto the higher forum and in that connection Gulab Singh''s case, 1987 (2) Rec. Cr.R. 416 and Rameshwar Yadav''s case, 1986 SC 315 were relied upon.

In the present case, the basis on which release of the petitioner was expected is not mentioned in the order Annexure P 3. In that connection, reference may be made to Yadvinder Singh''s case (supra) wherein it was held by K.S. Bhalla, J. that there was absolutely no mention in the order if the petitioner had taken any steps for his release on bail. As the detention order does not spell out the basis on which the release otherwise was expected, there does not appear to be any application of mind by the detaining authority and this order was said to have been made just in a mechanical manner and may well be treated as speculative.

In R.M. Lohia''s case (supra) it was held as under "The satisfaction of the detaining authority cannot be subjected to objective tests and courts are not to exercise appellate powers over such authorities and an order proper on its face passed by a competent authority in good faith would be a complete answer to a petition for a writ of habeas corpus. But when from the order itself circumstances appear which raise a doubt whether the officer concerned had not misconceived his own powers, there is need to pause and enquire. The enquiry then is, not with a view to investigate the sufficiency of the materials but into the officer''s notions of his power. If the order passed by him showed that he thought his powers were more extensive then they actually were, the order might fail to be a good order. No doubt, what matters is the substance, but the from discloses the approach of the detaining authority to the serious question and the error in the form raises the enquiry about the substance. When the liberty of the citizen is put within the reach of authority and the scrutiny by courts is barred, the action must comply not only with the substantive requirements of law but also with those from watch alone can indicate that the substance has been complied with." In this case also, the form of the under discloses the approach of the detaining authority to the serious question and the error in the form raise the enquiry about the substance.

The learned counsel has also referred to the argument that the grounds for detention are self contradictory and for this proposition has relied upon certain authorities, but in, the present case that question does not arise, as the authorities, referred to by the learned counsel, relate to National Security Act of J & K State where in the expressions are a little different. He has also referred to Nand Kishore Singh''s case (supra) for supporting his view that as the grounds of revocation of the earlier order have not been brought on the record this should prove fatal to the present detention order Annexure P3 This authority does not support his view, as therein it has been specifically laid down that the grounds of second detention do not indicate that the detaining authority was aware of the prior detention and had considered, whether further detention of the detenu was necessary, or not and in such a situation, the detention order in that case was quashed. On the other hand, in the present case the detention order. Annexure P3 specifically mentions that the earlier detention order dated 9.6.1998 had been revoked and as the further detention of the petitioner was necessary, the detaining authority passed this order.

In Bakhshish Singh''s case (supra), it was observed that the prejudicial activities contemplated under the Act need not necessarily be activities prohibited or made punishable under any law, as the preventive detention is not a punishment for an offence. It was observed that it cannot, therefore, be argued that detention on this ground is not permissible.

In Hemlata''s case (supra), it was laid down that the High Court under Article 226 or the Supreme Court under Article 32 of the Constitution of India have to see whether the formalities enjoined by Article 22 (5) thereof have been complied with by the detaining authority. If the formalities have been complied with, the Court cannot examine the material before it and find that the detaining authority should have been satisfied on the material before it and detained the detenu under the Preventive Detention Act, for, that is the function of an Appellate Court.

In Anirudha''s case (supra), a Division Bench of Allahabad High Court held that the detention order, not mentioning about the passing or revocation of the earlier detention order does not make it invalid as the detaining authority is not required to mention specific grounds for revoking the earlier order and fresh order of detention can be passed on the same grounds as support the earlier order.

In Vijay Kumar''s case (supra) it was held that awareness of the earlier detention is enough although the fact of awareness need not be indicated in the order. It is enough if it appears from the grounds of detention.

Keeping in view the principles laid down in the above said cases, the facts of this case can be examined. As laid down in Shashi Aggarwal''s case (supra), there is no material apparently disclosing to the detaining authority that the petitioner in spite of being already in custody, there was yet compelling reason for his detention. The detaining authority has taken into consideration the possibility of the Court granting bail and has also made a bald statement that the petitioner would repeat his Criminal activities and to support this, credible information or cogent reasons arc not apparent on the record The detention order does not spell out the basis on which the release otherwise was expected. In these circumstances, there does not appear to be any application of mind by the detaining authority and the detention order seems to have been made just in mechanical manner and can be treated as speculative.

The admission said to have been made, as mentioned in paragraphs 3 and 4 of the grounds or detention, Annexure P4, disclosed a cognizable case warranting registration of the same in respect of the facts disclosed in the admission made. No reason is forthcoming as to why no case in respect of the facts, mentioned in paragraphs 3 and 4, was registered. As a consequence, it can be assumed that the said, admissions had no basis at all for passing the detention order. Moreover, these admissions were later on controverted in the representation Annexure P5 made by the petitioner on 7.7.1988. It was required for the State Government to take this representation into consideration before confirming the order.

At this stage, a reference can be made to Balbir Singh case (supra) in support of the arguments advanced by the learned Assistant. Advocate General, Punjab. There detention order based on four grounds relating to which FlR''s were registered. The petitioner therein moved the petition before he could be arrested. The detention order was attacked on the following grounds :

i) It has been passed on the same grounds as were the basis of earlier detention order which has been revoked before passing the present one;

ii) The ''petitioner was harassed by terrorists and personal safety measures were demanded, but on this ground one of the cases was registered against him;

iii) Detention order in question could be passed only if there was a valid ground; and

iv) Present petition was filed before the petitioner could be detained in execution thereof.

D.V. Sehgal, J. by reference to the provisions of subsection (2) of Section 14 introduced by the National Security (Amendment) Act, 1984 (in short the Act) held that (i) ground mentioned above was not available and to this counsel for the petitioner candidly agreed. It was also held that due to a technical error earlier, order had to be revoked and new order was passed. After holding that grounds 1 to 3 in the grounds of detention were valid, reference to section 5A of the Act provided that detention order could be upheld even on one of the grounds. Petition was held to be maintainable even before detention and thus, all the four challenges were held to be untenable. The judgment is of no help to the State, as facts were distinguishable.

The foregoing discussion shows that the detaining authority failed to apply its mind and alleged subjective satisfaction is not proved. This criminal writ petition is, therefore, accepted. The detention order and the grounds of detention are quashed. The petitioner is directed to be released forthwith, if not required in any other case.

Revision accepted.