Charat Singh vs State of Punjab and ors.

Ujagar Singh, J.—The petitioner has challenged the detention order dated 8.1.1987 (Annexure PI) passed by the District Magistrate, Faridkot, stating that to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order and security of the state, it was necessary to detain him and he was required to be arrested and detained in District Jail, Faridkot.

The said order was approved by the Governor of Punjab on 16.1.1987. The grounds of detention were only two

(1) That on. 14.5.1996, Sub Inspector Sher Singh recovered from personal search of the petitioner one country made pistol 12 bore and 2 live cartridges from the right Dab of his Pajama, in the area of village Badhni Kalan, near Gurdwara Bhiana Sahib in presence of some other police employees and a case was registered vide First Information Report No. 64 dated 14.5.86 under Section 25 of the Arms Act, Police station Badhni Kalan and that on 1. 10.86 at 7 p.m. the petitioner addressed a gathering in Gurdwara Rao Kalan on the Gurdwara loudspeaker to the effect that in order to topple the Barnala Govt. and for creating terror among the people in general and police officers in particular they should be assaulted and whenever any Minister of Barnala Govt. visit their village, he should be Gheraoed and dealt with in the same manner as Indira Gandhi was dealt with. Several other parts of his speech were also attributed and on account of this allegation, FIR 122 dated 1. 10. 1986 under section 124A, Indian Penal Code, Police Station Badhnikalan was registered against him.

The learned counsel for the petitioner has urged that the order was not passed after subjective satisfaction and therefore, it was liable to be quashed. Further argument was advanced that the first occurrence is alleged to be of 14.5.86 and the second of 1.10.86.

The learned counsel for the respondent has supported the detention order.

I have considered the arguments and have gone through the file.

The facts mentioned in. the detention order clearly indicate that the petitioner was yet to be arrested in pursuance of the order and was to be lodged in District Jail, Faridkot. The detention order mentions the petitioner as resident of village Raoke Kalan, PS Badhni Kalan, tehsil Moga, District Faridkot. The Senior Superintendent of Police, Faridkot was to lodge the petitioner in District Jail, Faridkot. In the grounds of detention, again, description of the petitioner, as stated above, has been repeated. Even at the time of approving the detention order the fact that he was already under arrest and rather, the approval order has been addressed to the petitioner on the above said address. In the petition it has been specifically stated that the petitioner was arrested on 29.4.1986 from his residence and after keeping him in Police custody for about 15 or 16 days, during which he was tortured, he was produced on 15.5.1986 in the Court at Moga with allegation he used to harbor terrorists. Thereafter the Police, foisted upon him several cases under sections 25/27 of the Arms Act and 302 of the IPC and on 20.5.86, he was sent to District Jail, Faridkot. It is further alleged that on 26.6.86, the petitioner was sent to Security Jail, Sangrur and was thereafter ordered to be released on bail in criminal cases pending against him and was actually released from that jail on 29.9.1986, but he was again arrested and kept for 2 months in Police Station Kotwali, Sangrur and was produced only on 23.10.1986 before a Judicial Magistrate and then, sent to District Jail, Faridkot.

In reply, these allegations have been denied, except that the petitioner was arrested in the above 2 cases and the allegations made in the FIR. In paragraph 3 of the reply, it has been admitted that the petitioner was lodged in District Jail, Faridkot from where he was later on release on bail. paragraph 4 of the petition has been denied and it has been submitted that the petitioner was arrested only on 23101986 in the case FIR 122. Thus, the petitioner was under arrest, according to the reply since 23101986 and no action was taken against him since that date till 811987, i.e. for a period of about 21/2 months. Rather, when the case against the petitioner was registered on 1101986; action should have been teken, if at all it was required, immediately after registration of the case. Both the occurrences had become stale and there is no explanation forthcoming, why this order was passed after so much delay. There does not seem to be any continuity or proximity between the occurrence and the impugned order. As a matter of fact, when the petitioner was already in custody, there was nonecessity to pass the impugned order unless the detaining authority was satisfied that the release of the petitioner was imminent, either on bail or otherwise. On this account, the detention JUDGMENT and the approval order are silent.

Even if it is assumed that the petitioner was taking steps to get himself released on bail, bail application could be opposed by the State or subsequently, attempt should have been made for its cancellation. No such facts have been shown that the petitioner had applied for bail and what was the outcome of such a bail application. It has been time and again held by the Courts that merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail, the order of detention under the National Security Act should not ordinarily be passed. The stress of the judicial pronouncement is that bail application has to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Reference may be made to the observations made by their Lordships of the Supreme Court in Ramesh Yadav v. District Magistrate, Etah and others, AIR 1986 SC 315 which reliance was place in case Gulab Mehra v. State of U.P., 1987 IIT SVER (CR) 108 : 1987(2) Recent CR 416.

Keeping the foregoing observations in view, this petition is accepted and the detention order and also the approval order are quashed. The petitioner be set at liberty forthwith, if not required in any other case.