Kewal Singh vs State of Punjab and anr.

S.S. Grewal, J.

The petition under Article 226 of the Constitution of India, relates to quashment of impugned order of detention against Kewal Singh detenu passed by the Distt. Magistrate, Jalandhar, Annexure P 1 dated 14th February, 1989 under Sections 3(2) read with Sections 3(3) and 14A of the National Security Act, 1980 as amended upto date (hereinafter referred to as the Act) as well as order of confirmation passed by the State.of Punjab, Annexure P3, dated 24th February, 1989.

The details of the alleged prejudicial activities find mention in the grounds of detention Annexure P2. These mainly relate to conspiracy said to have been hatched up in the year 1986 between the detenu while he was posted as a Constable at PAP Headquarters, Jalandhar Cantt, along with other police officials including codetenu Manjit Singh, who too was posted as a Constable in the PAP, to kill Shri J.F. Ribeiro, the then Director General of Police, Punjab as the latter had insulted the Sikhism and injured the sentiments of the Sikhs by sending the police in the Golden Temple, Amritsar and had killed many Sikh youths in fake police encounters and was committing atrocities on the Sikhs. These allegations include murderous assault made on the life of Shri J.F. Ribeiro on the morning of 3rd, October 1986. In that occurrence two Constables were shot dead whereas three others were injured and case FIR No. 69 dated 3101989 under Sections 302/307/148/149/120B/419/170 IPC., 25 Arms Act and 3/4 of the Terrorist and Disruptive Activities (Prevention) Act was registered against the detenu and other codetenus. The detenu was admittedly arrested in the case on 8.11.1986 and was granted bail by the Designated Court, at Sangrur and surety bonds were accepted on 18th January, 1989. According to the allegations of the detenu he was rearrested when he came out of the jail, kept in illegal custody and subsequently involved in another case relating to FIR No. 9 dated 321989 under Sections 212, 446A and under Sections 34 of the Terrorist and Disruptive Activities (Prevention) Act, whereas according to the plea taken by the State in its reply the detenu was rearrested on 3rd February, 1989 in, the aforesaid criminal case and that the order of detention was passed with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and security of State and interference with the efforts of the Government in coping with terrorist and disruptive activities. The second case against the detenu is that he and his codetenu, Manjit Singh gave shelter to the extremfsts in Kothi No. 28 Haqikat Road, Jalandhar Cantt and both the said detenus were said to have given financial aid, meals, clothes and had kept the arms of the extremists with them and supplied the same when needed.

The learned counsel for the parties were heard.

The learned counsel for the detenu placed reliance on the Single Bench authority of this Court in Manjit Singh v. State of Punjab and others, 1990 (1) Recent Criminal Reports 487 (Criminal Writ Petition No. 1706 of 1989) decided on 20th December 1989, wherein Chief Justice S.S. Dewan (as his lordship then was) quashed the order of detention dated 1421989 and subsequent confirmatory order. It is conceded by both the counsel that Manjit Singh detenu in the aforecited authority as well as Kewal Singh detenu in the present petition were arrested together in the aforesaid two criminal cases and impugned orders of detention and confirmation were passed against them on identical grounds. In Manjit Singh case (Supra) order of detention and order of confirmation were quashed mainly on the ground that apart from registration of criminal case against the petitioner (Manjit Singh) no other reliable material has been brought on record to show that the petitioner, if released on bail was likely to commit activities prejudicial to the maintenance of public order and security of the State or that there were compelling reason''s to justify his preventive detention in view of the fact that the petitioner was already under detention on various charges for committing criminal offence.

Apart from the Single Bench authority of this Court, reliance was rightly placed in the aforecited authority on the two authorities of the apex Court in Ramesh Yadav v. Distt. Magistrate, Etah and others, AIR 1986 SC 315 and Binod Singh v. District Magistrate, Dhanbad Bihar and others, AIR 1986, SC 2090 wherein it is provided that it is not proper to pass such order against a person who is in custody in the absence of imminent possibility of his release.

I also find further support in my view by authoritative pronouncement of their Lordships of the Supreme Court in Vijay Kumar v. Union of India and others, 1988(1) Recent Criminal Reports 602; AIR 1988 SC 934 , wherein reviewing its earlier decisions it was observed as under:

"When detenu is already under detention for an offence whetherbailable 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 a charge of 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 aforecited authorities are fully applicable to the facts and cicumstances of the present case. In the instant case even the detaining authoirity was aware of the fact that the detenu, is already in detention in a serious criminal case no other relevant material has been brought on the record to show that the detenu, if released on bail 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.

On behalf of the State reliance was placed on the authority of the apex Court in State of Punjab v. Surjit Singh and others, (Crl. A. Nos. 1244, 1031, 1060, 789, 1545 of 1988 and 2229 of 1987) wherein it was observed that in the case of detention of a person who is already in custody, what is required to be indicated in the first place, is that the detention authority must have awareness of the fact that the person is already under custody. Secondly, there must be compelling reason to put the same person under preventive detention. The compelling reason for preventive detention has to be gathered from the grounds of detention and not by anything else. If the activities of the detenu as disclosed from the grounds of detention call for his preventive detention nothing prevents the detaining authority to exercise his power to put the same person under preventive detention also it may not be necessary in such cases to indicate that there would be an immediate possibility of the detenu being released. It may not be possible for the detaining authority to watch every step of the undertrial prisoner for securing bail order.

In the instant case the grounds of detention mentioned in Annexure P2 have been perused. However, as already discussed earlier even from the grounds of detention no compelling reasons for passing the impugned order of preventive detention or passing confirmatory order has been made out and the same cannot be legally sustained particularly in view of the fact that the case of the present detenu is at par with that of Manjit Singh whose detention has already been quashed as detailed above.

For the foregoing reasons, the impugned of detention, Annexure P1, dated 14.12.1989 and confirmatory order, Annexure. P3, are hereby quashed and the writ petition is allowed to the extent indicated above. Since the detenu is already stated to be in custody in a criminal case no immediate order for release of the detenu can be passed.