Gurbachan Singh vs State of Punjab

Harbans Singh Rai, J. (Oral)

The petitioner has challenged his detention under section 3 of the National Security Act, 1980, ordered by the District Magistrate, Jalandhar, vide his order dated 16th October, 1987 (Annexure P3). The challenge to this order is primarily on the ground that the District Magistrate has not applied his mind and the order has been passed without any application of the mind and just mechanically. It is further contended that the District Magistrate has passed the detention order on the next day of the receipt of the communication from the Senior Superintendent of Police, Jalandhar and the detention order is almost a copy of the letter sent to the District Magistrate by the Senior Superintendent of Police.

I have heard the learned counsel for the parties and have considered the submissions made by the counsel for the petitioner. In order to appreciate the submissions made by the learned counsel for the petitioner it will be better to reproduce the grounds of detention which led to the satisfaction of the Distract Magistrate :

(a) On 1211987, Inspector Hardip Singh S.H.O. P.S. Dakha (Ludhiana) recovered 25 live cartridges of 455 bore, 100 live cartridges of 455 bore, 176 live cartridges of L.M.G. and two packets of ''Jelly'' weighing 3 kg. 600 grams and 2 kg. 450 Grams in consequence of disclosure statement made by you in the area of village Sangal Sohan in the presence of Inspector Sardool Singh and S.I. Sant Kumar of C.I.A. Staff, Ludhiana. You could not produce any licence for the possession of the aforesaid articles. In this connection, case FIR No.10 dated 12.1.1987 U/s 25 A. Act and 4/15 Exp. Act was registered at P.S. Sadar Jalandhar. On interrogation by the police, you stated that Bhadur Singh (Extremist) r/o Saiflabad, District Kapurthala and his brotherinlaw Fattu Dhinga had given the aforesaid ammunition and Jelly'' to you. (Copies of F.I.R. No. 10/87, P. S. Sadar, Jalandhar, disclosure statement and recovery memo. dated 12.1.1987 of this case and your statement recorded in this case on 12.1.1987 are attached as Annexures I, II, III.)

(b) On 7.6.1987, while patrolling, ASI Harjit Singh of P.S. Sadar Jalandhar along with Constable Gurbax Singh reached at the distance of bout 100 yards ahead of liquor vend of village Jamsher on the Jamsher Nurmahal Road where you, Gurmit Singh s/o Sohan Singh, Jaswant Singh s/o Jagir Singh, Sukhwinder Singh s/o Bachan Singh, Santokh Singh S/o Hardial Singh and Gurminder Singh s/o Dalbag Singh residents of Jamsher, Avtar Singh s/o Nirmal Singh r/o Gillan and Narmit Singh s/o Kulwinder Singh r/o Chamiara were propagating against the Punjab and Central Government and were saying that they have established the Punjab Government and they will also destabilize the Central Government. The police ''is killing the innocent Sikhs in fake Police encounters in Governor Rule. They will not allow the shops of meat, liquor and cigarettes to ran in Punjab. They were also raising slogans of Khalistan. On apprehension of breach of peace, ASI Harjit Singh arrested you and your aforesaid companions u/s 107/151 Cr.P.C. (Copies of complaint u/s 107/151 Cr.P.C. and D.D. Rs. No. 7 and 12 dated 7 6.1987 of P. S. Sadar Jalandhar are attached as Annexures IV, V.)

(c) On 26.9.1987, ASI Jagdish Singh of P. S. Sadar Jalandhar received information through reliable source that on 25.9.1987 at about 8 p.m. you convened a secret meeting in your house in village Sangal Sohan in which 8 Sikh persons participated out of which Sukhdev Singh, Fattu Dhinga Bahadur Singh Saiflabad and Charanjit Singh @ Channa (brother of Dhanna Singh member Panthic Committee) R/o Khera Majha were identified. The meeting lasted for about one hour. While addressing the meeting, you said that the Punjab Police and Para Military forces are torturing the Sikh youths and they are being killed in fake police encounters. The police officials who torture the Sikhs, will not be spared. Their goal is the achievement of Khalistan. Money should be looted from the banks and other Govt. agencies for purchasing the arms, The Hindus should be massacred in order to oust them from Punjab. The shops of Pann, Bidi, Cigarettes and liquor vends should be burnt. You further said that if the Hindus leave Punjab out of fear, Khalistan will automatically be formed. Charanjit Singh @ Channa also delivered similar speech and the other participants of the meeting endorsed their views (copy of the source report is attached as Annexure VT.")

As far as ground (a) reproduced above is concerned, it is stressed that the petitioner had been bailed outprior to the order of detention but it is not available anywhere from the records that the fact that the petitioner. has allowed bail, was present to the mind of the District Magistrate at the time of passing of the impugned order. The District Magistrate even did not try to know or verify as to at what stage that case was. Similarly, the District Magistrate had not cared to know as to for what reasons the police had not registered any case against the petitioner on the basis of the fact specified in grounds (b) and (c) though these facts concededly gave rise to very serious offences under the Terrorist ''and Disruptive Activities (Prevention) Act, 1985. He also did not try to know as to why the petitioner was not detained in those cases. He even did not enquire as to why no action under section 107/151 of the Code of Criminal Procedure was taken.

It is practically conceded that in a similar situation I. S. Tiwana, J. had quashed the detention of the detenus in C.W.P. No. 1671 of 1987, decided on 8th January, 1988. I.S. Tiwana, J. had relied upon two Supreme Court judgments in Sadhu Roy v. The State of West Bengal, 1975 CAR 134 and Jai Singh and others v. State of Jammu and Kashmir, 1985(2) RCR(Crl.) 39 (SC) : 1985 Crl. L.J. 527 .

In view of the decision taken in C.W.P. No. 1671 of 1988, in exactly identical facts, I have no option but to quash the detention of the detenu. Adopting all the reasons given in that judgment, I quash the detention ''of the detenu ordered by the District Magistrate, Jalandhar, vide his order dated 16th October, 1987, (Annexure P3) and direct him that he should be set free forthwith.