Karnail Singh vs State of Punjab and Another

Ujagar Singh, J.—The petitioner has challenged the order of his detention, Annexure P/3 passed on 29-6-1988. This order refers to an earlier order dated 19-6-1988 which was revoked by a separate order on 29-6-1988. The impugned order has been passed on the ground that the petitioner has been acting in a manner prejudicial to maintenance of public order and security of State and interfering with efforts of Government in coping with terrorist and disruptive activities and on account of such activities, detention of the petitioner under the National Security Act, 1980 (No. 65 of 1980) was considered to be necessary with a view to preventing the petitioner from further acting in the aforesaid manner. This impugned order further states that the President of India while being conscious of the fact that the petitioner was already in custody and had been taking steps to get himself released from the custody as per information received from the reliable sources and there was every likelihood of his being released from custody and in the event of his release from custody he was likely to resume such prejudicial activities in future and there was thus compelling necessity to pass detention order.

In the grounds of detention, Annexure P/4, the petitioner is said to have held a secret meeting in his house on 1-6-1988 at about 9-00 p.m. in which six sikh persons participated out of which Kuldip Singh and one Jaspal Singh are said to have been identified. The meeting lasted for about 40 minutes. While Addressing the meeting, the petitioner is stated to have said that persons of his community were passing through hard times and the Government of other community wanted to finish persons of their community in toto. It is further stated that the petitioner addressed the said persons that militants of their community were fighting for the cause of persons of their community and they should be given physical and financial aid by heart and they should form a separate government, a separate Constitution and have a separate flag. The further allegation is that the petitioner stated that if the members of the other community are forced to leave their State, the State of their own community will automatically be formed. Kuldip Singh present in the said meeting is also stated to have given a similar speech and the other participants endorsed their views. Of this meeting, ASI Gurmej Singh of Police Post Basti Bawakhal P.S. Sadar, Jalandhar received information through reliable sources. It may be mentioned here that in this respect no case was registered against the petitioner or others. Again, on 5-6-1988, inspector Preetpal Singh, S.H.O. P.S. Sadar, Jalandhar received another information through a reliable source that the petitioner was propagating among people in the village the same ideas as he expressed in the above-said meeting on 1-6-1988. In this respect daily diary report No. 44 of the same date is said to have been recorded in Police Station Sadar, Jalandhar. It is also pertinent that no case for this incident was registered against the petitioner or others.

The next ground given in Annexure P/4 is that on 6-6-1988, S.I. Roshan Lal of P.S. Sadar, Jalandhar, while on patrol duty received secret information that the petitioner was propagating the same ideas as mentioned above with some more additions laying stress on the said ideas. S.I. Roshan Lal, along with other police officials reached village Sangal Sohal at about 10-00 p.m. where the petitioner was propagating the said ideas among 10-12 persons near the gate of Gurdwara under the electric light and on seeing the police party, the petitioner succeeded in running away while raising slogans. Case, F.I.R. 142 of 1988 under Sections 124A, 153A, I.P.C. was registered in P.S. Sadar, Jalandhar on 7-6-1988 at 12-05 a.m. Statements of Balbir Singh sarpanch and Nirmal Singh Panch of the said village are said to have been recorded on 6-6-1988 corroborating the version given in the F.I.R. and the petitioner was arrested on 9-6-1988.

A representation was made by Gurbachan Singh, father of the petitioner on 24-5-1988 and the same is Annexure P/5. In this representation, it is specifically mentioned that the detention order against the petitioner was quashed by Harbans Singh Rai, J. on 6-5-1988 and the petitioner was released only on 18-5-1988 in pursuance thereof. It is further alleged that the petitioner was arrested by Police of Police Station Kotwali, Sangrur immediately after the petitioner was released from jail and thereafter he was handed over to Police of P.S. Sadar, Jalandhar. This representation was addressed to D.I.G. Jalandhar Range, Jalandhar. A telegram, copy Annexure P/6 was addressed to Hon''ble Governor of Punjab, Hon''ble Chief Justice of High Court of Punjab and Haryana and Director General Punjab Police, Chandigarh on 8-6-1988 mentioning therein that after the quashing of detention order dated 6-5-1988 in Criminal Writ Petition No. 1907 of 1987, the petitioner was released on 18-5-1988 but Police of Sangrur arrested him on the same day and handed over to Police of Police Station Sadar, Jalandhar on 23-5-1988 and the petitioner was in illegal custody and Gurbachan Singh apprehended false implication of the petitioner and sought intervention by the addressees.

Representation, Annexure P/7 was addressed by the petitioner on 1-7-1988 to the Home Secretary to Government, Punjab, Chandigarh and all the facts stated above have been mentioned in this representation. Along with this representation, copy of order of this Court, copy of bail order, copy of application to the D.I.G. copy of telegram and copies of sworn affidavits of said Kuldip Singh and Nirmal Singh were sent. Annexure P/8 is the order of bail passed by Sessions Judge, Jalandhar on 21-6-1988 in the above noted F.I.R. No. 142 dated 7-6-1988. Affidavits of Balbir Singh Sarpanch and Nirmal Singh Panch whose statements are said to have been recorded by the Police as mentioned in the grounds of detention are Annexure P/9 and P/10 respectively.

This petition came up for hearing on 21-7-1988 and was adjourned for notice to A.G. Punjab to 28-7-1988 on which date it was adjourned for filing reply on or before the date fixed and the case was adjourned to 19-8-1988. The case was, however, taken up on 23-8-1988 and counsel for the State sought time to file reply and the case was adjourned to 30-8-1988 on which date no reply was filed and the case was adjourned for today for arguments. The detention order as also the grounds of detention have been challenged on the ground, that the detaining authority did not take into account the representation of the petitioner, telegrams sent by Gurbachan Singh in respect of illegal custody of the petitioner as also the bail order in the only case-registered against the petitioner passed on 21-6-1988 and that the averment by the detaining authority shows specifically that there was no application of mind by the detaining authority about the said facts and if the said facts had been taken into account, the detention order could not have been passed.

The counsel for the State has supported the detention order as also the grounds of detention with his usual vehemence. I have considered the arguments of the counsel as also the facts as found from the file;

Looking at the bail order, Annexure P/8 it becomes clear that petitioner was released on bail in case F.I.R. No. 142 dated 7-6-1988 mentioned in the grounds of detention relating to Police Station Sadar, Jalandhar and the present order of detention was passed only on 29-6-1988 and contents of this detention order also make it clear that the detaining authority was not aware of this bail order till then. This itself is sufficient to show non-application of mind by the detaining authority while passing the detention order. Ground No. 1 in grounds of detention, Annexure P/4 is not supported by registration of any case although the incident alleged, if true, would have attracted non-bailable offence.

Ground No. 2 is said to have been supported by a daily diary report on 5-6-1988 but that is not sufficient inasmuch as the incident, if true, would attract the provisions of non-bailable offence. Thus non-registration of a case against the petitioner in respect of this incident as also the incident under ground No. 1 would show that the story of information said to have been received was not believed by the Police Officer.

Ground No. 3 relates to an incident for which F.I.R. No. 142 was registered under Sections 124A and 153A Indian Penal Code in Police Station Sadar, Jalandhar on 7-6-1988 at 12-05 a.m. and in respect of that F.I.R. statements of Balbir Singh Sarpanch and Nirmal Singh Lambardar are said to have been recorded. So far as this incident is concerned, the petitioner was directed to be released on bail on 21-6-1988 by the Sessions Judge, Jalandhar and the allegation, "likelihood of the petitioner being released from custody and in the event of his release from custody, he was likely to resume such prejudicial activities in future and there was thus compelling necessity to pass the detention order", in the detention order are not sufficient to pass any detention order. In this respect, I can refer to Shashi Aggarwal Vs. State of U.P. and Others, wherein it has been laid down by the Supreme Court asunder (at p. 841 of Cri LJ):

The possibility of the Court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order.

To hold this, reliance was placed on Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others, wherein it was held as under:

A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens.

In Shashi Aggarwal''s case (supra), it was also held that the validity of the order of detention has to be judged in every individual case on its own facts and that there must be material apparently disclosed to the detaining authority in each case that the person against whom an order of preventive detention is being made is already in custody and yet for compelling reasons, the preventive detention was necessary.

The principles enunciated in the above noted authority are amply applicable to the present case. On the grounds mentioned therein, this detention order and the grounds of detention cannot be sustained.

Another aspect of the case also cannot be ignored. There is enough material on the record to show that the earlier detention order was quashed by Harbans Singh Rai, J. on 6-5-1988 in Criminal Writ Petition No. 1907 of 1987 and in spite of the quashing of that order the petitioner was released only on 18-5-1988 but as a matter of fact the petitioner was taken into custody by the police of Sangrur immediately after his release and the petitioner was handed over to police of Jalandhar only on 23-5-1988 after having kept him in illegal custody up to that date. At Jalandhar, the police kept the petitioner again in illegal custody up to 9-6-1988 when he is said to have been arrested in the said case of F.I.R. No. 142. The representation, Annexure P/5 sent on 24-5-1988 by Shri Gurbachan Singh, father of the petitioner to the D.I.G. Jalandhar Range specifically mentions that the petitioner was taken into custody by police of P.S. Kotwali, Sangrur immediately after his release on 18-5-1988 and kept in illegal custody till he was handed over to the police of P.S. Sadar, Jalandhar, Telegram, Annexure P/6 mentioned above also supports the allegations made in the said representation apart from the representation made by the petitioner to the Home Secretary and the same is Annexure P77. With this representation, copies of the material documents were sent as enclosures as mentioned in the representation. The allegation of the police that Balbir Singh Sarpanch and one Nirmal Singh Panch gave their statements to the Police in support of the allegations contained in the said F.I.R. No. 142, has been controverted by affidavits of the said persons, Annexures P/9 and P/10) respectively. In case all these facts which were most relevant for having a subjective satisfaction have been completely ignored by the detaining authority and if the same had been considered in their proper perspective, the detaining authority was not expected to pass any detention order such as Annexure P/3 and, therefore, there was no question of any grounds of detention also.

May be, the detaining authority passed this detention order under some policy decision made by the higher authorities and conveyed to him or it is just possible that a draft detention order and draft grounds of detention may have been sent to the detaining authority. The detaining authority owned the same and issued the detention order and grounds of detention. In any case, passing of the detention order and for supporting it, giving the grounds of detention, Annexure P/4 were not called for in the circumstances of this case.

In view of the above discussion, this petition is accepted and detention order, Annexure P/3 and grounds of detention, Annexure P/4 are set aside and the petitioner is directed to be released forthwith unless required in any other case.