Harbhajan Singh vs State of Punjab and anr.

H.S. Rai, J.

Harbhajan Singh son of Mangal Singh has challenged his detention under the National Security Act on various grounds. The brief facts are that the petitioner was arrested vide detention order dated May 13, 1988, passed by the District Magistrate, Jalandhar, Annexure P. 1, on the grounds given in Annexure P. 2. The State Government vide order dated May 24, 1988, Annexure P.3 revoked the detention ordered by the District Magistrate, bail passed a fresh order of detention the same day on identical grounds, a copy of which is Annexure P.5.

The grounds of detention as given in Annexure P.5 are as under:

"(a) Baba Dalip Singh s/o Harchand Singh Jat r/o Rode, District Faridkot was arrested on 22.11.1987 in case FJR No. 86, dated 22.11.1987 under section 25, Arms Act, 3/4/5 TDA(P) Act, PS.Cantt. Jalandhar. On 22.11.1987, on interrogation by the Police, Baba Dalip Singh disclosed that he had received the amount of Rs. 1,50,00000/ out of the booty of Punjab National Bank, Ludhiana. Out of the said amount, Baba Dalip Singh gave Rs. 400000/, the amount of Rs. 300000/ was taken back from you by Baba Dalip Singh and Manjit Singh s/o Gurnam Singh r/o Sarinh in the month of April, 1987. You were arrested in this case on 8.12.1987 and on the same day police recovered packets of currency notes worth Rs. 100000/ in consequence of confessional statement made by you before Shri Swaran Singh SP/Detc Jalandhar, in the area of village Sarinh. The packets of currency notes recovered from you bore the seal of Punjab National Bank, Industrial Area, Ludhiana, and the signatures.

(b) On 12.5.1988, A.S.I. Surinder Pal of P.S. Nakodar received information through reliable source that on 11.3.88 at about 9.30 P.M. you held a secret meeting in your house in village Sarinh in which 8/10 Sikh persons participated out of which Balwinder Singh s/o Gurbachan Singh Jat r/o Delhi and Manjit Singh s/o Gurnam Singh Jat r/o Sarinh were identified. The meeting lasted for about one hour. While addressing the meeting you said that the Punjab Police is killing the Sikh youths in fake encounters and is committing atrocities on the Sikhs, These officers of the Police and CRPF who are committing atrocities on the Sikhs will not be spared. The shops of Bidi, liquor and meat will not be allowed to run in Punjab. The Punjab Governor is doing excesses with the Sikhs at the instance of the Central Government. The arms should be purchased by looting the Banks and other Government agencies. Terrorism should be spread to oust the Hindus from Punjab. You also said that Hindus should be massacred and ousted from Punjab. Balwinder Singh also made a similar speech in the meeting and the other participants endorsed your views.

"1) On account of the above said activities, the President of India is satisfied that you should be detained with a view to preventing you from acting in the manner prejudicial to the maintenance of public order and security of State and interference with efforts of Government in coping with terrorist disruptive activities and as such has passed an order for your detention with a view to preventing you from indulging in such prejudicial activities in future."

I have heard the learned counsel for the parties and gone through the record. The case of the petitioner is that two F.I.Rs. were registered against him and he has been allowed bail in both the F.I.Rs. The detaining authority has not taken into account that he was an undertrial and had been allowed bail by the Court of competent jurisdiction. His grievance further is that the order has been passed without any application of mind on the part of the detaining authority. It is stated in the petition in paragraph No. 12(ii) that the petitioner was allowed bail in FIR No. 86, dated November 22, 1987 and FIR No. 26 of 1987 under section 395, Indian Panel Code, and the detaining authority was not aware of the fact that the petitioner was granted bail in the abovenoted FIRs at the time of the passing of the detention order. Subparagraph No. (ii) of paragraph No., 12 of the petition reads as under :

"(ii) That the petitioner was granted bail in FIR No. 86, dated 22.11. 1987 and FIR No. 26 of 1987 under section 395, IPC. The detaining authority was not aware of the fact that the petitioner was granted bail in the above noted FIRs at the time of the passing of detention order. On this ground alone the detention is liable to be quashed".

In reply, the District Magistrate, Jalandhar respondent No. 2 stated as under :

"(ii) In reply to this subpara it is stated that the detenu was not in custody in any criminal case when the order of detention against him was passed by the competent authority."

And Mr. V.V. Chadha, Under Secretary to Government of Punjab, stated as under :

"(ii) That the contents of subpara (ii) of para No. 12 of the petition is incorrect. The detention order was passed by D.M. Jalandhar on 13.5.1988 with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and security of State. The detenu was not in custody when the detention order against the petitioner was passed by the detaining authority. The detention order passed after perusal of the record and arriving at the subjective satisfaction by the detaining authority. There is complete and close nexus between the prejudicial activities. committed by the petitioner and the detention order."

Taking the assertion in the petition and the reply filed by the respondents, it is clear that the fact that the petitioner had been allowed bail in the two FIRs is not disputed. It is also clear that there is no mention in the detention order as to whether the detaining authority was aware at the time of the passing of the detention order that the petitioner had been enlarged on bail in the said cases. In Anant Sakharam Raut v. State of Maharashtra and others, 1988(1) R.C.R.(Criminal) 619 : AIR 1987 S.C. 137 , the Supreme Court observed :

"National Security Act (65 of 1980), S. 3(2)Satisfaction of detaining authority Detention based on certain incidentsCriminal cases pending in respect of these incidentsDetenu, an undertrial prisonerDetaining authority, not made aware of the fact that detenu had moved applications for bail and that he was enlarged on bailDetention order silent about these factsTotal absence of application of mind on part of detaining authority Detention order was void. Decision of Bombay High Court reversed."

Another ground, as a mentioned in the grounds of detention is that on May 12, 1988, the petitioner hid participated in a meeting and had made a provocative speech. A reading of the allegation mentioned in the ground No. (b) concededly shows that the allegation gives rise to a very serious offence under the TD(P) Act. It is not clear why the State Government before passing the detention order did not care to know as to for what reasons the police had not registered any case against the petitioner on the basis of the facts mentioned in the ground. The State Government is expected to examine the working of the police and be satisfied as to why no action under the law was taken against the petitioner.

In Sadhu Roy v. The State of West Bengal, 1975 CAR 134, 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 same very day he was taken into custody under the Maintenance of Internal Security Act, 1971. In this situation, the Supreme Court observed as under

"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 than 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 present case, no case even was registered against the petitioner on the basis of the facts mentioned in ground, No. (b). Had there been any truth or substance in these allegations a case would have been registered against him. Justice I.S. Tiwana, J. while dealing with this aspect of the matter in Gurdial Singh v. State of Punjab, and others, 1988(1) Recent C.R. 481 , quashed the detention on this very ground.

Taking all the circumstances into consideration i.e. that the detaining authority was not aware of the fact that the detenu. has been allowed bail, never tried to find out/know or verify as to at what stage those cases are and whether there is any chance or likelihood of the conviction of the petitioner in those cases and the fact that no case has been registered for the allegations mentioned in ground No. (b), the detention of the petitioner is liable to be quashed. All these circumstances shows that this a case of nonapplication of mind.

As the detention of the petitioner is ordered without application of mind, it is quashed and the petitioner is directed to be released forthwith, if not wanted in any other case.