Gurdial Singh vs State of Punjab and Another

I.S. Tiwana, J.—The petitioner assails bis detention u/s 3 of the National Security Act in pursuance of the order passed by the District Magistrate, Jullundur on August 28, 1987 (Annexure P.1). The challenge to this order is primarily on the ground that though it has been stated therein that the District Magistrate was satisfied that with a view to prevent the petitioner from indulging in activities prejudicial to the maintenance of public order and security of State, it was necessary to detain him, yet this order had been passed without any application of mind and just mechanically. In order to sustain this stand, the learned Counsel for the petitioner points out that on the receipt of a communication from the Senior Superintendent of Police, Jullundur on August

28, 1987 (Annexure P. 6), specifying some.of the nefarious activities indulged into by the petitioner, the District Magistrate passed the impugned order on the same very day and as is well indicated by the grounds of detention supplied to the petitioner, without even changing a comma or fullstop from that letter of the Senior Superintendent of Police. It is further maintained by the learned Counsel that questions which should have normally been present to the mind of the District Magistrate in the light of the material supplied by the S.S.P. are not reflected by any material on record which has been produced in Court by the Assistant Advocate General.

Having given my thoughtful consideration to the entire matter in the light of the reply filed by the District Magistrate in which it has again been repeated at places more than one that he had applied his mind to the facts of the case, I find that it is not easy to dispel or reject the stand of the learned Counsel for the petitioner. In order to appreciate the above noted contention of the counsel the grounds of detention on which the alleged satisfaction of the District Magistrate is based deserve to be noticed in extenso:

(a) On 9-8-86, Inspector Swaran Singh of PS Sadar, Jalandhar received one S.L.R. 7.62 M.M. one rifle 315 bore, 114 rounds 7.62 MM 40 rounds 3.3. bore, 3 magazines stengun 9 MM, one bolt rifle 3.3., 8 rounds 3.3. bore, 51 rounds 38 bore, 284 rounds 9 MM 14 rounds 38 bore automatic and 89 rounds 45 bore automatic in consequence of disclosure statement made by you in the area of village Dhanal Khurd in presence of Inspector Kuldip Singh and ASI Gurbax Singh, you could not produce any licence for the possession of aforesaid arms and ammunition. In this connection case FIR 259 dated 9-8-86 u/s 25 Arms Act was registered at PS Sadar Jalandhar. On interrogation by the police you state that Manvir Singh Hari Singh Genl. of Khalistan Commando Force visited him frequently as you were also an active member of his (Manvir Singh and Hari Singh) party, you further state that few days back-Manvir Singh had brought the aforesaid Arms and ammunition to you and said to you that he should keep the same with him and it will be used when needed (copies of F.I.R. No. 259/86 PS Sadar Jalandhar your disclosure statement dated 9-8-86, recovery memo dated 9-8-86 and para No. 5 of C.D.No. 1 dated 9-8-86 of this case are attached as Annexures I, II, III, IV).

(b) On 20-7-87, SI Roshan Lal of PS Sadar Jullundur received information through reliable source that on 19-7-87 at about 9.00 p.m. Gurdip Singh s/o Phuman Singh Mistry r/o Basti Bawa Khel held a secret meeting in the Gurdwara which is situated opposite to the Govt. School in Basti Bawa Khel, in which 9/10 Sikh persons participated out of which you, Surinder Singh Ramta s/o Dharam Singh r/o Rair and Kulwant Singh s/o Lal Singh Arora r/o Kaki Pind were identified. The meeting lasted for about 45 minutes. While addressing the meeting, Gurdip Singh said the Punjab Police is committing atrocities on the Sikh youths and is killing the innocent Sikhs in fake police encounters. Those police officials who are committing atrocities on the Sikhs, will not be spared. The Governor Punjab is doing excess with the Sikhs at the instance of the Central Govt. He also said that 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. If the Hindus leave Punjab/Khalistan will automatically be formed. He further said that there should be pure Sikh Rule in Khalistan where nobody will be permitted to take meat or liquor nor anybody will be allowed to smoke. You also delivered a similar speech in the meeting and the other participants of the meeting endorsed your views (copy of the source report is attached as Annexure V).

(c) On 26-8-87, ASI Rajinder Pal of PS Sadar Jalandhar along with other police officials was present in village Sansarpur where he received information through reliable source that you were propagating against the Government at ''Adda'' of village Dhinan and was instigating the people. Thereafter ASI Rajinder Pal along with other police officials reached the ''Adda'' Dhinan where you were propagating against the Government and were saying that the Central Government is against the Sikhs and is doing excess on them. The Governor Punjab is getting the Sikh youths killed in fake encounters at the instance of Central Government. We will not spare the police officers who are responsible for fake police encounters. They should get united and massacre the Hindus. If the Hindus leave Punjab, Khalistan will automatically be formed. You also said that you should purchase the arms by looting the banks and other Govt. agencies to fight against the Government. On apprehension of breach of peace ASI Rajinder Pal arrested you Under Sections 107/151, Cr.P.C. (copies of complaint Under Sections 107/151, Cr.P.C. and D.D.Rs. No. 22 and 26 dated 26-8-87 of P.S. Sadar Jalandhar are attached as Annexures VI, VII, VIII).

So far as ground at (a) as reproduced above is concerned it is not in dispute that the petitioner had been bailed out in that case on October 29,1986 but it is not available anywhere from the records that this fact was present to the mind of the District Magistrate at the time of the passing of the impugned order. Even this is not indicated by the records anywhere that the District Magistrate ever tried to know or verify as to what stage that case had reached; what were the chances or likelihood of the conviction of the petitioner in that case? Similarly the file does not indicate that the Magistrate even cared to know as to for what reasons the police had not registered any cases against the petitioner on the basis of the facts specified in grounds at (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 bother to know as to why the petitioner was not detained in those cases. Why was it that the police felt contented by proceeding against the petitioner under Sections 107/151, of the Cr.P.C? In the normal course, these questions should have stared him in the face, he being in charge of the law and order in the District. Further the speed, with which the order had been passed i.e. on the very day the letter Annexure P.6 was received from the S.S.P., also indicates that he neither applied his mind to the desirability of detaining the petitioner under the National Security-Act nor did he think it proper to verify the facts stated in the said communication. It is no doubt true that satisfaction which leads to the detention of a person u/s 3 of the National Security Act is the subjective satisfaction of the detaining authority, yet as has been observed by their Lordships of the Supreme Court in Sadhu Roy Vs. The State of West Bengal, the legal label thai the satisfaction of the executive authority about potential prejudicial activity is "subjective" does not mean that it can be irrational to the point of unreality. Subjective satisfaction is actual satisfaction, nevertheless. The objective standards which Courts apply may not be applied, the subject being more sensitive; but sham satisfaction is no satisfaction and will fail in Court when challenged under Article 32 of the Constitution."

Further in this very judgment their Lordships have made some very meaningful observations in paragraph 15 of the same. That was a case where the detenu was sought to be prosecuted for various offences under the Railway Property (Unlawful Possession) Act No. 29 of 1966, but the said prosecutions were dropped and on the very same day he was taken into custody under the Maintenance of Internal Security Act, 1971. In this situation the Supreme Court observed as follows:

?There are two social implications of dropping prosecutions and resorting to substitutive detentions which deserve to be remembered. Where a grievous crime against the community has been committed, the culprit must be subjected to condign punishment so that the penal law may strike a stern blow where it should. Detention is a softer treatment then stringent sentence and there is no reason why a dangerous criminal should get away with it by enjoying an unfree but unpaid holiday. Secondly, if the man is innocent, the process of the law should give him a fair chance and that should not be scuttled by indiscriminate resort to easy but unreal orders of detention unbound by precise time. That is a negation of the correctional humanism of our system and breeds bitterness, alienation and hostility within the cage.

In the case in hand the position of the respondent authorities appears to be worse. What to talk of dropping the prosecutigft. against him, no cases even were registered against the petitioner on the basis of the facts specified at (b) and (c) above. Had there been any truth or substance in these allegations then it is beyond comprehension that no cases would have been registered against him. The learned Counsel does not appear to be far wrong in submitting that by now hundreds of cases have come to courts which were registered by the police under the Terrorist and Disruptive Activities (Prevention) Act, 1985 on the basis of mere secret information. The case in hand is one where the petitioner is alleged to have committed offences in the presence of the police itself i.e. A.S.I. Rajinder Pal of Police Station Sadar Jullundur. Strange as it may look, the District Magistrate did not feel the necessity of going into any of these aspects of the matter nor as already pointed out, the record indicates that any of these questions was present to his mind when the impugned order was passed. Again the learned Counsel for the petitioner appears to be right in submitting that the grounds of detention contained nothing more than what had been said by the S.S.P. in his communication AnnexureP.6. What to talk of any thing more or different not even a word, comma or full stop has been changed in any manner. In other words, the grounds of detention are just a verbatim copy of what the S.S.P had written in his communication Annexure P. 6. In such a situation this is how the Supreme Court expressed itself in Jai Singh and Others Vs. State of Jammu and Kashmir, :

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 grounds 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 referring to Jai Singh in the dossier is changed into "you" in the grounds of detentioa We are afraid it is difficult to find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner.

These observations literally apply to the facts of the case in hand.

In the light of the above noted authoritative pronouncements, the impugned order of detention, Annexure P. 1, cannot be sustained. The same is thus set aside and the petitioner is directed to be set at liberty forthwith.