Kulwant Singh vs State of Punjab and ors.

Ujagar Singh, J.—The petitioner seeks quashing of detention order dated 9th, May, 1987, vide which the petitioner was directed to be detained with a view to preventing him from acting in a manner prejudicial to maintenance of public order and security of State. The grounds given along with order are that about a month prior to 5th June, 1986 one Dev Singh had gone to Gurdwara Bibi Kahan Kaur, Moga for offering prayer. There the petitioners, Basant Singh, Chamkaur Singh. Jaspal Singh and Nirmal Singh, who were members of the All India Sikh Students Federation and who were previously known to Dev Singh were talking that the work assigned to them had to be done with full efforts and with these arms Hindus are to be murdered, shops of Hindus are to be set on fire so that terrorism may be spread. Out of the said persons, Chamkaur Singh and Nirmal Singh were making their companions to understand the plan. It is further stated that On 7th May, 1986 at 1 p.m. one Gurbachan Singh was present in Moga with his Fiat car No. CH 9657 and two Sikh youths of which description is mentioned came to him and said that they wanted to go village Kokri Phulla Singh Walla on the taxi. Rs. 60/ as fare of the taxi was settled and after making payment they sat in the car and started towards Kokri Phulla Singh Wala. On their asking the vehicle was taken towards village Chogawan. On reaching the bridge on Sem Nala in village Mehna, they asked to stop the car and waited for two other persons. Thereafter on their way back they asked the owner cumdriver to stop the car and they took out their pistols of 12 bore and asked Gurcharan Singh to hand over the keys of the car and he was put in the dickey of the car and they started the car. After some time, the car slowed down and Gurcharan Singh pulled a part of the hook of the handle of the dicky and came out by jumping on Kokri Jalalabad road and ran to wards the field He was fired at but could not be apprehended. A case FIR No. 74 dated 7.5.1986 under sections 392,1307/34 I.P.C., under section 3/4/6 T. D. A. (P) Act was registered against the petitioner and others. The petitioner was arrested on 28th May, 1987.

On 3rd May, 1986 at about 1230 p.m. Mohan Lal, Munim. was coming on a scooter towards grain market village Dalla and he was accompanied by one Hans Raj. On their way, scooter was parked and in the meantime three youths came there and one of them fired with pistol at Hans Raj, who fell down and was dragged. In this respect, case F.I.R. No. 72 dated 351986 under sections 362/392/120B/34 IPC and 25 Arms Act and section 3/4/6 T.D.A. (P) Act was registered.

On 3rd of May, 1986, the petitioner with two others came. on a scooter and were signalled by one Sukhminder Singh to stop but the petitioner did not stop and proceeded towards village Takhanwadh. Thereafter, the said Sukhmander Singh came to know on 451986 that three young men had shot dead Hans Raj Commission Agent on 351986 at about 1230 p.m.

On 27th May, 1986, the petitioner was apprehended along with his accompanying coaccused Ranjit Singh and the other two by the police party and different weapons were recovered from the possession of all of the accused. On the basis of this incident, case F.I.R. No. 80 dated 275, 1986 under sections 307,134 IPC, under section 3/4/6 of the T.D.A. (P) Act of P. S. Mehna was registered against the petitioner and, his coaccused.

Another ground for detention is that during investigation of the said case F.I.R. No. 80, the petitioner could not produce a licence for the arms recovered from him and another case F.I.R. No. 82 under the Arms Act was registered on that day in Police Station Mehna.

The counsel for the petitioner has mainly argued that the alleged activities had become stale before the detention order was passed on 9th May, 1987, and there was no continuity/proximity of activities alleged in the ground with the detention order.

Counsel for the State has opposed this petition on the grounds given, in the written statement filed by Shri V. V. Chadha, Under Secretary to Government of Punjab, Home Department, Chandigarh, as also the affidavit of Shri Bhupinder Singh Sandhu, IAS, District Magistrate, Faridkot. It is mentioned in the affidavit of the District Magistrate that the words "District Jail, Faridkot" where the detenu was to be detained after arrest was a clerical mistake and it should be "District Jail, Sangrur" and this mistake was later on corrected, It is not disputed that the petitioner was already in jail from May 28, 1986 onwards and his arrest after the detentin order was only a paper transaction. It is averred that if the petitioner had not been detained, he would have continued to carry on his nefarious activities in future. It is also mentioned that the reported continous indulgence of the petitioner in the prejudicial activities as also his likelihood to resume the same in future necessitated passing of the order of detention. The nature of the material as also the tendency and inclination of the petitioners towards his future conduct weighed with the Detaining Authority for passing the impugned order. The District Magistrate, in addition" has mentioned that the petitioner moved bail application on December 4, 1987 in case F.I.R. No. 74 of 1986 and the same was declined by the Court. Similarly in case FIR No. 32 of 1986 the petitioner was discharged in the Court of Shri D. S. Chhina, Chief Judicial Magistrate, Sangrur, vide his order dated 14111987. The counsel for the State has vehemently sought to support the validity of the detention order. on the grounds mentioned in the replies.

Counsel for the parties have been heard fully and the facts which emerge therefrom are

i) That the petitioner was in custody since 27.5.1986 and it was only on 9.5.1987 that the detention order was passed and during this period no activity has been either mentioned or relied upon.

ii) The order of detention further shows that the petitioner was to he arrested and detained in District Jail, Sangrur, and the petitioner a the following address, was to be informed that he had a right to make representation against the order :

"Kulwant Singh alias Kanta son of Gurmukh Singh, r/o village Tekhan Wadh, Police Station Molina, District Faridkot."

Whereas the petitioner was already in District Jail, Sangrur, as stated above, since 27.5.1986, and admittedly had not been released on bail till the date of the order. Even thereafter in case F.I.R. No. 74 of 1986 the petitioner moved bail application only on 4.12.1987 and the same was declined.

iii) From 27.5.1985 till 9.5.1987 no effort is said to have been made for release on bail of the petitioner.

In view of the above said admitted facts it is difficult to say that the District Magistrate or any other authority concerned applied his mind to the facts of the case. The petitioner was already in custody and there was no question of his having continued to carry on prejudicial activities. As a matter of fact the District Magistrate himself admits that the petitioner could have carried on such activities if he had not been detained. The detention order of the petitioner also does not make it clear that after the said activities earlier to May 28, 1986 there was any activity on the part of the petitioner. This gives rise to a definite conclusion that after the expiry Of a period of 1112 months the alleged activities had become stale and there was no continuity or proximity left between the activities and the detention order. In the said case F.I.R. No. 82 of 1986 the petitioner had been discharged on November 14, 1987, meaning thereby that the facts mentioned in the F.I.R. did not support the involvement of the petitioner in that case and relying upon such an activity for passing a detention order is nothing but penal and not preventive. There is a chain of authorities holding that detention order cannot be passed in view of the above facts and the said authorities are wellknown and, therefore, need not be repeated in this order.

In view of the above discussion this petition is accepted and, detention order dated 9.5.1987 is quashed so far as the preventive detention of the petitioner is concerned and the petitioner is directed to be set at liberty at once if not required in any other case.