Buta Singh vs State of Punjab and Another

Jai Singh Sekhon, J.—The detenu-petitioner was arrested on 19-4-1988 and in pursuance of his disclosure statement got recovered 16 missiles. A case u/s 25 of the Arms Act read with Section 3/4 of the Terrorist and Disruptive Activities (Prevention) Act was registered against him vide FIR No. 47 dated 19-4-1988 at Police Station, Kalanaur in district Gurdaspur. The District Magistrate, Gurdaspur, ordered the detention of the petitioner on 13-6-1988 u/s 3(2) of the National Security Act (hereinafter called ''the Act''). Thereafter the State Government revoked the order of the District Magistrate on 24-6-1988 and vide Annexure P-1 passed a fresh detention order u/s 3(2) read with Section 14A(1) & Section 14(2) of the Act by taking into consideration that although the detenu is in custody in the substantive case registered against him under the Arms Act etc., yet he is taking steps for his release on bail and there is likelihood of resuming such prejudicial activities in future. The grounds of detention Annexure P-2 were served upon the petitioner on the same date in Sangrur Jail where he was already confined.

The petitioner has sought the quashment of the said order of detention by invoking the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India on various grounds. The learned counsel for the petitioner has stressed only three grounds, the first being that the detenu being already in custody, there was no justification for passing the detention order. The second ground is that the detention order is bad as only one incident of possession of missiles would not amount to future propensity of the petitioner in dealing in such like activities. Lastly, it is contended that the grounds of detention Annexure P-2 being the verbatim copy of the report of the sponsoring authority i.e. Senior Superintendent of Police, Batala, it is a clear case of non-application of mind on the part of the detaining authority.

In the counter affidavit filed by Under Secretary to the Government of Punjab in the Home Department, it is maintained that the factum of detenu being already in custody was considered by the detaining authority at the time of passing the impugned order and that the very possession of 16 missiles by the detenu is in itself sufficient to conclude that the petitioner had indulged in this activity after due planning. It is further averred that the detaining authority had applied its mind to the facts and circumstances of the case even though the same were contained in the proposed grounds of detention by the sponsoring authority.

I have heard the learned counsel for the parties besides perusing the record.

There is no force in the contention of the learned counsel for the petitioner that the detaining authority has not taken into consideration the factum of the detenu being already in custody as the perusal of the detention order Annexure P-1 as well as grounds of detention Annexure P-2 clearly reveal that the detaining authority was well aware of this fact and had passed the order after taking into consideration that the detenu was trying to get himself released on bail and would indulge in such activities thereafter.

No doubt the detention order was passed by the detaining authority on one incident involving the possession of 16 missiles by the detenu, yet all the same keeping in view the very nature of the fire-arms, it can be well concluded that such like missiles being not easily available in the market, the detenu had indulged in preplanned and protracted activity in procuring and possessing the same obviously for using it for nefarious activities.

The Supreme Court in Jai Singh and Others Vs. State of Jammu and Kashmir, observed that where the proposed grounds of detention served upon the detenu by the detaining authority are verbatim copy of the grounds given by the sponsoring authority, then no greater proof is required for coming to the conclusion of non-application of mind by the detaining authority. Apart from the other grounds, the apex Court dealt with this matter as under:

"These seven writ petitions under Article 32 of the Constitution have to be allowed on the sole ground that there has been a total non-application of the mind by the detaining authority, the District Magistrate of Udhampur. We had called for the records and the learned counsel for the State of Jammu & Kashmir has produced the same before us. First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father''s name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of....... Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the ground of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh s/o Ram Singh, resident of village Bharakh, Tehsil Reasi." Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referrig to Jai Singh in the dossier is changed into ''you'' in the grounds of detention. We are afraid it is difficult to find greater proof of non-application of mind. The liberty of a subject is as serious matter and it is not to be trifled with in this casual, indifferent and routine manner."

I have perused the original file which reveals that Senior Superintendent of Police, district Batala vide his letter No. 191 3 SB dated 25-5-1988 had forwarded the proposed ground of detention to the District Magistrate which are verbatim copy of the present grounds of detention AnnexureP-2 which were served upon the petitioner by the State Government. No doubt the original file where the State Government has dealt with the revocation of order of detention passed by the District Magistrate reveals that the Deputy Secretary had prepared a memorandum of the facts and circumstances of the case and submitted to the Home Secretary and that the grounds of detention were also got wetted from the legal agency of the Central Investigation Department, yet all the same the final grounds of detention being verbatim copy of the proposed grounds of detention of the sponsoring authority, so following the dictum laid down by the Supreme Court, there is no escape but to conclude that the detaining authority had passed the order of detention without application of its mind to the facts and circumstances of the case.

For the foregoing reasons, the order of detention of the petitioner being illegal is hereby quashed by accepting this writ petition. The detenu be released forthwith if not required in any other case.