Harbhajan Singh vs State of Punjab and anr.

Ujagar Singh, J.

The petitioner challenges the detention order (Annexure P1), the grounds of detention, as also the order of approval thereof through this petition. The only two incidents/activities are alleged against the petitioner and the same are :

(i) Subject matter of First Information Report No. 138/87, under Section 216 and 399 of the Indian Penal Code and section 3/4 of the Terrorist and Disruptive Activities (Prevention) Act, 1985, dated 10.5.187, Police Station Jandiala, District Amritsar; and

(ii) The petitioner''s Behak (house constructed in the fields) having been used for conspiring to kill one Harpal Singh and his son.

The said case, FIR No. 138 was registered and the petitioner was arrested that case on the same day. The version on which this case was registered that at about 2 p.m. on that day, Sub Inspector Harcharan Singh, Station House Officer, Police Station Jandiala received secret information that the petitioner through his coaccused Gurdial Singh alias Pardhan, resident of village Dhulke and Jaswant Singh alias Jassa alias Wahe Guru of Sangrawan were giving shelter and harbouring the extremists whose names were : Sukhjinder Singh Brar, Gurjit Singh, Baljinder Singh, Sukhdev Singh, Jasbir Singh, Avtar Singh Pahalwan of Kangra Colony, Amritsar, Bakhshish Singh and Iqbal Singh at the Behak of the petitioner. The same version also includes that the petitioner supplies arms to the extremists and conceals their arms and gives financial assistance to them. This FIR is based only on the information received by Inspector Harcharan Singh, Station House Officer of the said Police Station. The detention order does not mention as to who supplied the information and whether that secret information was corroborated by any other fact or not.

The second ground for detention, as stated above, is also based on information, not corroborated later on. It looks that this allegation is also a part of allegation made in the said FIR No. 138.

The affidavit of Shri V.V. Chadha, Under Secretary to Govt. Punjab, Home Department, Chandigarh has been filed and it mentions the subjective satisfaction of the District Magistrate, based on the above said grounds. Similarly, the affidavit of Shri Ramesh Inder Singh, formerly District Magistrate, Amritsar, now Secretary, Punjab State Agricultural Marketing Board, Chandigarh, has been introduced. It repeats the same grounds as in the affidavit of Shri V.V. Chadha. The detention is supported by both the affidavits.

The learned counsel for the petitioner has laid stress on many grounds to assail the detention of the petitioner and the learned counsel for the State has supported the detention on the grounds mentioned in the two affidavits.

The challenge to the detention has been made on the ground that the District Magistrate, before passing the detention order did not apply his mind to the facts of the case and therefore, there was no question of his subjective satisfaction. Admittedly, the petitioner was arrested on 10.5.1987 and since then he has been in custody. The activities alleged against the petitioner are based on secret information which is not corroborated by any independent evidence. Therefore, it is not sufficient to satisfy the authorities concerned to pass the detention order.

The petitioner was in custody and this custody was definitely to the knowledge of the District Magistrate and it is mentioned in the detention order. It is, of course, stated therein that the District Magistrate was further satisfied that in the event of his being released from custody, he was likely to indulge in activities prejudicial to the maintenance of public order and security of State in view of his prima facie propensity towards such activities. This order mentions the description of the petitioner as Harbhajan Singh @ Nihang, son of Shri Kharak Singh Jat, resident of Dhoolke Behak, P.S. Jandiala, District Amritsar, now in custody and at the same time a direction is given by the District Magistrate, that the petitioner be arrested and detained in Central Jail, Amritsar. The petitioner was already in the said jail and there was no question of his being arrested and detained in that jail. These two facts, i.e. that he was already in custody in the said jail and he was to be arrested and then detained in that jail, run contrary to each other. The only inference that can be drawn from these contradictory statements is that there was no application of mind at all. Again, there is no mention in the detention order that release of the petitioner was imminent and also as to what steps had been taken by or on behalf of the petitioner for his release on bail. The order is conspicuously silent on this aspect of the case. Reliance can safely be placed on the following observations made in Ramesh Yadav v. District Magistrate, Etah and other (14), AIR 1986 SC 315 by their Lordships of the Supreme Court :

"It is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail, he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail, an order of detention under the National Security Act should not ordinarily be passed. We are inclined to agree with counsel petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well settled principles indicated by the Court in a series of cases relating to preventive detention. The impugned order, therefore, has be quashed."

This also needs mention that the above observations were relied upon and approved by their Lordships in case Gulab Mehra v. State of UP and Orissa, 1987(2) Recent Criminal Report 416 (SC) : 1987 III SVLR (CR) 108. In the present case also, the above said observations aptly apply as the detention order makes it clear that the detaining authority was apprehensive that in case the petitioner was released on bail, he would again carry on his criminal activities in the area concerned.

The second test applied in Ramesh Yadav''s case (supra), as well as Gulab Mehra''s case (supra), that if the apprehension had to be opposed and in case bail application was granted, challenge against that order in the higher forum had to be raised and that merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail, an order of detention under the National Security Act should not ordinarily be passed.

As a matter of fact, this case is covered by the above observations and there is no escape from the conclusion that the detention order; the grounds of detention, as also the approval order in this case, are liable to be quashed.

It is also worth mentioning that the affidavit of Shri V.V. Chadha specially mentions in paragraph 6 thereof, that the detention order was passed on 16.6.1987 and the same was forwarded for approval to the State Government on that day itself. In paragraph 3 of the affidavit of Shri Ramesh Inder Singh (the then District Magistrate, Amritsar) specifically mentions that the detention order was passed on 18.6.1987 and the petitioner was detained and lodged in jail on 18.6.1987. This contradiction is material and renders that actual date of passing the order obscure although it will not affect materially the merits of the case. In matters of detention, such mistakes become very material and may lead to the quashing of the order, especially when the detention based on such orders in made for a period of two years.

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