Dilbagh Singh vs State of Punjab and anr.

J.S. Sekhon, J.

This petition as well as Cr.W.P.No. 1025 of 1988 filed by Jasbir Singh, petitioner, for quashing the detention under section 3 (2) of the National Security Act, 1980 (hereinafter called the Act) shall be disposed of by this order, as the detention order was passed by the District Magistrate, Amritsar, on the joint criminal activities of both these petitioners.

Admittedly. both these petitioners were in judicial custody in the Central Jail, Amritsar, when the District Magistrate passed the detention order under Section 3 (2) of the Act on 10th December, 1987 and 11th December, 1987 respectively in the case of Dilbagh Singh and Jasbir Singh, on the basis of four separate incidents of snatching licensed firearms taking place on various dates from March, 1987 to September, 1937. In one of those cases, Kartar Singh licensee was injured with a gun shot while snatching his firearm. After the detention order along with the grounds of detention were served upon the petitioners in jail, Dilbagh Singh petitioner filed the representation against his detention on 9th January, 1988, which was received by the State Government through the Superintendent of Central Jail, Amritsar, on th January, 1988 and after obtaining the comments of the District Magistrate, Amritsar, it was finally rejected on 27th January, 1988, and communicated to the detenu on 30th January,1988. In the case of Jasbir Singh petitioner, he submitted his representation on 31st December, 1987 to the Superintendent of Jail, Amritsar. It was received by the State Government on 4th January, 1988 and after obtaining comments of the District Magistrate, Amritsar, it was finally rejected on 13th January, 1988 and communicated to the detenu on 15th January, 1989.

The learned counsel for the petitioners contended that there was no material on the record to conclude that the detenu, if released on bail in the cases in which they are being detained, they were likely to commit activities prejudicial to the maintenance of public order. Reliance in this regard has been placed upon the dictum laid down by the Supreme Court in Smt. Shashi Aggarwal v. State of U.P. and others, A I.R. 1938 Supreme Court 596 Mrs. S.K. Bhatia, learned Assistant Advocate General, Punjab, appearing on behalf of the State, on the other hand, maintained that the detention order as well as the grounds of detention clearly make out a case that the District Magistrate was aware of the detention of the detenus in jail and that on the basis of the involvement of both these petitioners along with others in the four separate incidents of snatching licensed firearms with force, the above referred order was rightly passed.

The perusal of the detention orders of the District Magistrate in both these cases reveals that the district magistrate was well aware of the detention of the petitioners in the Central Jail, Amritsar, in the cases mentioned above and the likelihood of their being released on bail. The perusal of the grounds of detention containing the details of the facts of the above referred cases further support the conclusion of the District Magistrate that there were compelling reasons to pass the detention order under section 3 (2) of the Act against the petitioners as there was likelihood of their indulging in terrorist activities prejudicial to the maintenance of the public order. For the sake of ready reference, the facts of the above referred four cases contained in the grounds of detention are reproduced as under:

That on 1.4.87 at about 10/10.30 P.M. you along with Jasbir Singh @ Jassa s/o Piara Singh r/o Dhotian, P.S. Sirhali, Gurmej Singh @ Geja s/o Shangars Singh Jat r/o Dhotian Police Station Sirhali and Baldev Singh @ Deba v. s/o Jit Singh r/o village Tur Police Station Sirhali district Amritsar and 2 other unknown persons armed with 12 bore DBBL gun and pistols went to the Bethak of Kartar Singh s/o Gopal Singh situated in the area of village Dhotian Police Station Sirhali. One of you all fired a shot hitting Kartar Singh on left side of his stomach and forcibly took away his licensed 12 bore DBBL gun No. FI7981Y76 alongwith 2 live cartridges of the same bore. All of you also raised slogans of Khalistan Zindabad and threatened family members of Kartar Singh to kill them in case they informed any one about this occurrence. In this connection case F I.R. No. 74 dated 3.4.87 u/s 397 IPC, 25/27 Arms Act, 3/4 TDA (P) Act was registered in Police Station Sirhali on the statement of Kartar Singh which is under "investigation. You along with your above named 3 companions were arrested in this case on 17.9.87. This licensed gun alongwith 2 live cartridges of 12 bore and one empty cartridge of 12 bore recovered from your companion Jasbir Singh @ Jassa on 13.9.87 by ASI Gurcharan Singh of Sirhali in the presence of Constable Kashmir Singh No. 249 posted in the same police station for which a separate case FIR No. 180 dated 13.9.37 u/s 25 A. Act was registered in Police Station Sirhali which is also under investigation.

That on 10.9.87 at about 10.30 PM you armed with 12 bore DBBL gun along with Jasbir Singh (a) Jassa armed with 12 bore DBBL gun, Gurmej @ Geja armed with Kirpan and Baldev Singh @ Deba armed with Datar referred to in para No. 1 above went to the Bethek of Surat Singh s/o Surain Singh Jat situated in the area of village Tur Police Station Sirhali and you all forcibly took away licensed 12 bore SBBL gun No. CS4489Y71 with 10 live cartridges of the same bore from said Surat Singh. In this connection FIR No. 177 dated 11.9. 87 u/s 192 IPC 25A Act and 3/4 TDA (P) Act was registered in Police Station Sirhali against all of you and you alongwith your above named 3 companions were arrested in this case on 16.9.87 and this case is still pending investigation. This licensed gun alongwith 3 live cartridges and one empty cartridge of 12 bore were recovered from the possession of your companion Gurmej Singh @ Geja on 13.9.87 by HC Puran Singh of PS Sirhali in the presence of Constable Bakhshish Singh No. 1717 and constable Sardara Singh No. 746 of the same Police Station. In this connection case FIR No. 181 dated 13.9.87 u/s 25 A Act as registered at PS Sirhali against you for the above recoveries which is still under investigation.

That on 13.3.87 at about 8 PM you along with Jasbir Singh @ Jassa Gurmej Singh @ Geja, Baldev Singh @ Deba referred to in para No. 1 above armed with pistols went to the Bethak of Rattan Singh s/o Kishan Singh Jat situated in the area of village Takhtu Chak Police Station Verowal and forcibly took away his licenced 12 bore DBBL gun No. 2682/D4 along with 6 live cartridges of the same bore. Consequently case FIR No. 67 dated 14.3.87 u/s 392 IPC 25 A. Act was registered in Police Statin Verowal. You along with your above mentioned 3 companions were arrested in this case on 17.9.87 and this case is under investigation. This licenced gun along with 4 live cartridges and one empty cartridge were recovered from you on 13.9.87 by ASI Surinder Singh I/C Polce Post Naushera Pannuan in the prsence of Constable Tejinder Singh No. 2523 and Sadhu Singh No. 623. In this Connection case FIR No. 162 dated 13.9.87 u/s 25 A. Act was registered at Police Station Sirhali against you.

That on the nigh intervening 12/13.9.87 at about 12.30 A.M. you along with your above referred companies Jasbir Singh 2 Jassa, Gurmej Singh @ Geja, Baldev Singh @ Deba Armed with guns and pistols fired upon the police party headed by ASI Surinder Singh I/s Police Post Naushera Pannuan while he was holding Naka Bandi on the Canal Bridge in the area of village Naushera Pannuan. The police party also fired in selfdefence but none was injured. You and your above named companions were apprehended on the spot. You all raised slogans Khalistan Zindabad Central Govt. Murdabad, Hindu will be made to run from there and Khalistan will be created. In this connection case FIR No. 179 dated 13.9.87 u/s 307 IPC 25/27 A. Act 3/4 TDA (P Act was registered at Police Station Sirhali, which in under investigation. One country made 12 bore pistol and 4 live cartridges and 1 (empty) cartridge of 12 bore were recovered from your companion Baldev Singh @ Deba by HC Gian Singh of Police post Naushera Pannuan in the pressure of Constable Gurmit Singh No. 2336 for which case FIR No. 183 dated 13.9.87 u/s 25 A. Act PS Sirhali was registered against said Baldev Singh @ Deba. Fire arms and ammunition as detailed in para 12 and 3 above were also recovered from you and your other companions namely Jasbir Singh @ Jassa and Gurmej Singh @ Geja."

The perusal of the above referred facts containing in the grounds of detention leaves no doubt about the subjective application of the mind of the District Magistrate, Amritsar, before passing the above referred detention order. It also justifies the conclusion that there was every likelihood of the detention order. It also justifies the conclusion that there was every likelihood of the indulgence of the petitioners, in committing activities prejudicial to the maintenance of public order or indulging in terrorist activities. Under these circumstances, the test laid down by the Supreme Court in Smt. Shashi Aggarwals case (supra) for passing a detention order of a detenu already in judicial custody appears to have been fully compiled with in the present case, as the District Magistrate had passed the detention order being fully aware of their such detention and the likelihood of their committing activities prejudicial to the maintenance of public order in case of their being released on bail. The Supreme Court had quashed the order of detention of Smt. Shashi Aggarwal in the above referred case by holding on facts that the apprehension of the detaining Authority that the detenu if enlarged on bail would again carry on her criminal activities was not justifiable.

Their Lordships of the Supreme Court in Smt. Poonam Lata v. M.L. Wadhawan and another, A.I.R. 1987 Supreme Court 2098 after elaborate discussion had held that the mere detention of the detenu in some other case does not take away the jurisdiction of detaining Authority from making an order of preventive detention provided the Authority was aware of this fact and he was subjectively satisfied that the order of detention is necessary under the circumstances of a particular case. In this view of the matter, there is no force in this contention of the learned counsel for the petitioner.

The second ground to assail the orders of detention of these two petitioners pertains to the unreasonable delay in disposing of their representations. In the case of Dilbagh Singh, in the return filed by Shri V.V. Chadha, Under Secretary to Government, Punjab, Home Department, it reveals that he had tried to dispose of the representation in the following manner :

"The representation of the petitioner dated 9.1.88 was received on 11188 through the Supdt. Central Jail, Amritsar. The comments of the detaining authority on the representation were called vide TPM dated 11.1.88. The detaining authority sent its comments on 14188 after making enquiries and verifying the facts from the police authorities. Thereafter, the representation was dealt with on 15/1, (16/1 and 17/1 were holidays) 18/1, 19/1, 21,/1, (23/1 and 24/1 being again holidays) and 25/1 at various level''s and thereafter the case was sent to the competent authority and on 27188 the representation was considered and rejected by the competent authority after due consideration. As already submitted in para No 4 above, intimation regarding rejection of the representation was also communicated to the petitioner on 30188 through the Supdt. Central Jail, Amritsar."

The perusal of the above explanation shows that the dealing of this representation on 15th, 21st and 22nd January, 1988 at various levels has not been fully explained even though 16th, 17th, 23rd and 24th January, 1988 happened to be holidays. Admittedly, the representation has to be disposed of by the GovernorinCouncil due to the President Rule in Punjab. In a similar situation, their Lordships of the Supreme Court in Harish Pahwa v. State of Uttar Pradesh and others, 1982(1) C.L.R. 45, had held as under :

"In our opinion, the manner in which the representation made by the appellant has been dealt with reveals a sorry state of affairs in the matter of consideration of representations made by the present detained without trial. There is no explanation at all as to why no action was taken in reference to the representation on 4th, 5th and 25th of June, 1980. It is also not clear what consideration was given by the Government to the representation from 13th June, 1980 to l6th June, 1980 when we find that it culminated only in a reference to the Law Department, nor it is apparent why the Law Department had to be consulted at all. Again, we fail to understand why the representation had to travel from table to table for six days before reaching the Chief Minister who was the only authority to decide the representation. We may make it clear, as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comment from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We would emphasise that, it is the duty of the State to proceed to determine representations of the character above mentioned with the almost expedition, which means that the matter must be taken up for consideration as soon as representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. This not having been done in the present case we have no option but to declare the detention unconstitutional. We order accordingly, allow the appeal and direct that the appellant be set at liberty forthwith."

The above referred view of the Supreme Court was followed by a Single Bench of this Court in Surinder Singh v. State of Punjab, 1987(2) Recent Criminal Reports 54 , as well as in Avtar Singh v. State of Punjab, 1987(1) Recent Criminal Reports 643

In view of the above dictum of the Supreme Court, there is no option but to hold that the representation in Dilbagh Singh''s case was dealt with in, a most unsatisfactory manner.

Similarly, in the case of Jasbir Singh, petitioner, in his return Mr. V.V. Chadha, Under Secretary to Government Punjab, Home Department, had tried to justify the dealing with the representation promptly by stating in subpara (iv) of para 6 as under :

"That in reply to this subparas, it is stated that the petitioner submitted his representation on 311287 through the Supdt. Central Jail, Amritsar, which was received in this office on 4.1.88. The Distt. authorities were asked to furnish the comments on the representation on 5188. The SSP/Amritsar forwarded the comments and sent the required information to D. M. Amritsar on 5188, who in turn submitted his comments on 6188 to the State Govt. after making necessary enquiries. The same were received in this office on 7188 and examined the representation at various levels from 7188, 8188, (910/1/88 Holidays) 11188, 12188 and finally rejected on 13188 by the competent authority on merits after carefully considering the same together with the entire material. Thus, the representation was disposed of expeditiously and promptly. The petitioner was informed on 1511988 through the Supdt. Central Jail Amritsar regarding the rejection of his representation against his acknowledgement."

A perusal of the same shows that dealing with the representation at various levels beyond 711988 till 1311988 when the comments were received, is not justifiable.

Thus, in view of the above findings, the detention of the petitioners is hereby quashed and they are directed to be set at liberty forthwith if not required in any other case.