Harjone Singh alias Jona vs State of Punjab and ors.

S.S. Grewal, J.

This petition under Article 226 of the Constitution of India relates to quashment of impugned order of detention bearing No. 546214111 (NSA)88/13970 dated 5th July, 1988 as well as confirmation order No. 5462HIII (NSA)88/6408 dated 21121988 passed under section 3 read with Section 12(1) of the National Security Act and read with Section 14A of the National Security Act, 1980 as amended upto date and for release of the detenu.

In brief the unlawful activities prejudicial to the maintenance of the public order of State attributed to the detenu in the grounds of detention are that on 2951986, the detenu along with his associate Gurmit Lal alias Sodhi signalled Bhag Singh and his son Surjit Singh, who were coming on a scooter to stop with intent to snatch that scooter. The rider of that scooter did not stop. The detenu fired a pistol shot hitting Surjit Singh on his right shoulder. On the alarm raised by Bhag Singh the detenu and his associate ran away. In this connection FIR No. 169 dtd. 29586 under Sec. 307 IPC and u/s. 25 of the Arms Act was registered at Police Station Sadar, Jalandhar.

The grounds of detention further reveal that on 2921988 the detenu was arrested by Amritsar police in a case under Section 3/4 of the Terrorists & Disruptive Activities (Prevention) Act and under section 25 of the Arms Act relating to FIR No. 35 dated 2921988 of Police Station `E'' Division, Amritsar. During the investigation of that case the detenu confessed that he along with Gurmit Lal alias Sodhi had committed the crime relating to FIR No. 169 dated 2951986, referred to above.

During the investigation of case relating to FIR No. 152 dated 261987 under Section 302/307 of the IPC, under Section 415 of the Explosive Substances Act and u/s. 3/4 of the Terrorists & Disruptive Activities (Prevention) Act of Police Station Division No. 4, Jalandhar, it came to light that the detenu, his brother Manjit Singh and their father Gian Singh had given shelter and aid to the extremists. In this connection FIR No. 218 dated 1261987 under Sections 212/216A of the IPC and under Section 4/5 of the Explosive Substances Act was registered at Police Station Sadar, Jalandhar. The detenu was arrested in the said case on 431988.

On 1791987, the detenu and his associate Gurmit Lal alias Sodhi are alleged to have robbed Post Office, Bidhipur, Jalandhar, at gun point and took away Rs. 3293/. FIR No. 374 dated 1791987 under Sections 382/34 IPC, u/s. 25 of the Arms Act and u/ss. 3/4 of the Terrorists & Disruptive Activities (Prevention) Act was registered against the detenu. During the investigation of that case, the detenu who was arrested on 931988, admitted his guilt and that of his associate Gurmit Lal alias Sodhi.

On the basis of the prejudicial activities referred to above the impugned order of detention dated 571988 and confirmation order dated 21121988 were passed against the detenu.

The learned counsel for the parties were heard.

It is significant to note that the first detention order was passed on 2461988 which was revoked by the State Government on 571988 and on the same day the impugned order of detention was passed by the State Government.

The impugned order of detention and confirmatory order have been assailed on behalf of the detenu firstly on the ground that since the petitioner was already in custody in serious criminal cases, the detaining authority had passed the impugned order of detention without application of mind and that apart from the registration of criminal cases against the detenu no other reliable material has been brought on the record to show that the detenu, if released on bail, was likely to commit activities prejudicial to the maintenance of the public order and security of the State, or that there were compelling reasons to justify his preventive detention. There is considerable merit in the contention raised by the learned counsel for the detenu. In view of the fact that the detenu was already in custody in numerous criminal cases with regard to serious charges including those under the Terrorists & Disruptive Activities (Prevention) Act, there was no imminent possibility of release of the detenu in bail in such criminal cases.

I find support on this point from the two authorities of the apex Court in Ramesh Yadav v. District Magistrate, Etah and others, AIR 1986 SC 315 and Binod Singh v. District Magistrate, Dhanbad, Bihar and others, AIR 1986 SC 2090.

I find further support in my view from the authority of the apex Court in Vijay Kumar v. Union of India and others, 1988(1) Recent Criminal Reports 602 (SC) : AIR 1988 SC 934 , wherein reviewing its earlier decisions it was observed that when a detenu is already under detention for an offence, whether bailable or nonbailable the detaining authority will take into his consideration the fact of detention of the detenu and, as laid down in Shashi Aggarwal''s case (supra) there must be compelling reasons to justify his preventive detention in spite of the fact that he is already under detention on the charge of a criminal offence. There must be material for such compelling reasons and the material, or compelling reasons must appear from the grounds of detention that will be communicated to the detenu. In other words, two facts must appear from the grounds of detention, namely (1) awareness of the detaining authority of the fact that the detenu is already in detention, and (2) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention.

The afore cited authorities are fully applicable to the facts and circumstances of the case in hand, inasmuch as the detaining authority was fully aware of the fact that the detenu was already in detention in serious criminal cases and no other relevant material has been brought on the record to show that there is imminent possibility of the release of the detenu in those cases, on bail. Nor any other material has been brought on the record to show that the detenu, if released on bail, was likely to commit activities prejudicial to the maintenance of the public order and security of the State or that there were compelling reasons to justify his preventive detention.

The argument advanced on behalf of the State that compelling reasons for preventive detention are quite apparent from the grounds of detention or that it was not necessary for the detaining authority to consider the imminent possibility of the release of the detenu is hardly tenable in the facts and circumstances of the present case.

From the perusal of the grounds of detention, Annexure P/2, in the instant case, no compelling reasons for passing the impugned order of preventive detention or passing of confirmatory order has been made out and the same cannot be legally sustained.

Another important aspect of the case is that even though the representation made by the detenu on 5101988 against his detention reached the State Government on 10101988, comments were received from the District Magistrate on 18.10.1988, the State Government deposed of the representation only on 26.10.1988. The explanation put forth by the State in para 10(v) of its reply is reproduced as under :

"That the contents of this subpara are denied being incorrect. Petitioner submitted a representation which was considered expeditiously. Representation was sent through Superintendent, Central Jail, Amritsar and was received in the office of the answering respondent of 10101988. After making necessary enquiries and verification comments were sent by District Magistrate, Amritsar on 17101988 which were received in the office of the answering respondent on 18101988 (1510 and 16/10/88 being holidays). In the light of the comments representation was processed and dealt with at various levels and was ultimately rejected by competent authority on 26101988, after due consideration. Rejection of the representation way conveyed to the petitioner through Supdt., Central Jail, Amritsar vide memo of State Govt. dtd. 26101988 (2010, 2210, 2310 and 251088 being holidays)."

The explanation furnished by the State in respect of delay in dealing with the representation of the detenu can hardly be considered to be a plausible or a justifiable one. I find support on this point from Single Bench authority of this Court in Dilbagh Singh @ Baga v. The State of Punjab and anr., 1989(1) Recent Criminal Reports 288 : 1988 Chandigarh Criminal Cases 688.

For the foregoing reasons impugned order of detention dated 5th July, 1988 or the confirmatory order dated 21121988 cannot be legally sustained and the same are hereby quashed. This petition is accordingly allowed to the extent indicated above. The detenu, however, would be released if he is not required to be detained in any other case.