Lakhwinder Singh @ Lakha vs State of Punjab

Harbans Sing Rai, J.

Petitioner Lakhwinder Singh @ Lakha son of Ajit Singh, resident of Bhuse, Police Station Gharinda, District Amritsar was detained pursuant to the order of detention dated March 17, 1988, Annexure P. 1 issued by the District Magistrate, Amritsar, under section 3(2) of the National Security Act, 1980. The petitioner had been arrested in F.I.R. No. 38 dated March 2, 1988, under section 3/4 T.D.A. (P) Act registered in Police Station, Gharinda. While the petitioner was in jail, the District Magistrate passed the said order. The petitioner made a representation to the State Government through Superintendent of Jail. Amritsar, on March 22, 1988. but nothing came out of that. The detention order has been passed on the ground that the petitioner had addressed a congregation at Adda Sarin Amant Khan which amounted to an offence and a case mentioned above vide FIR No. 38 had been registered. The grounds given in the detention order Annexure P. 2 are as under :

"1. That on 2.3.1988 ASI Harbans Singh along with police officials was going towards chowk Bhakna from Gharinda and when the police party reached the railway crossing Lahori Mal then Beant Singh Head Constable along with other police official met him and he gave the statement to ASI Harbans Singh stating that on 2 3 1988 he along with constable Garib Singh No. 18^0 was present for collecting secret information at Adda Sarin Amant Khan where you were found addressing a congregation to the effect that Khalistan Zindabad, Punjab Government Murdabad, Central Government is the enemy of the Sikhs. The Sikh youths are being got murdered by the Central Government in fake encounters. Many sikh youths are lodged in the jails for The achievement of Khalistan. You further stressed that the Sikhs should unite and procure maximum money and weapons. According to the present situation you all should unite and should arm all yourself with weapons to indulge in rioting and for that the Sikh militant youths should be persuaded so that due to terror the Hindus should leave Punjab so that their property may be usurped by you all. If the Hindus migrate from Punjab then Khalistan can easily be established. The Sikh youths who are contributing for the achievement of Khalistam should be given every protection and shelters and in time of need the weapons of the militants should be retained and concealed by you all. You further stressed that all of you should have a separate constitution and should unit under saffron flag On the basis of the information case FJR No 38 dated 2.3.1988 undersection 3/4 TDA (P) Act was registered at Police Station, Gharinda.

On 2.3.1988 the police party headed by ASI Harbans Singh raided your house in village Bhuse and arrested you from your house. You were interrogated by ASI Harbans Singh on 2.3.1988. During interrogation you admitted having delivered a speech referred to above, and further admitted your association with the extremists and you further admitted ?having served meals and also some time kept their weapons with you, further admitted that you had been going to Pak to bring opium and later on. on the asking of the extremists you had brought weapons for the extremists belonging to the group headed by Garbachan Singh Manochahal and you had brought weapons two times and had delivered the same to the persons sent, by Gurbachan Singh Manochahal who was earlier known to you and you had brought the weapons on his asking

A) On account of the above said activities, I, Sarabjit Singh IAS, District Magistrate, Amritsar, being satisfied that you should be detained with a view to preventing you from acting in manner prejudicial to the security of State and maintenance of public order and interference with the efforts of Government in coping with terrorist and disruptive activities and, therefore I have passed an order for your detention with a view to prevent you from acting in aforesaid manner in future."

The petitioner has challenged the order of detention on the ground that he was already in custody and there was no ground to detain him under the National Security Act. The District Magistrate in his detention order has said "that this order has been passed by me being conscious of the fact that Shri Lakhwinder Singh @ Lakha is already in judicial custody in the cases registered against him Lakhwinder Singh is taking steps to get himself released from the custody and there is every likelihood of his being set at liberty, and in that event he is likely to indulge in prejudicial activities in view of his prima facie propensity towards such activities and thus there is compelling necessity to pass the detention order against him though he is in judicial custody at present."

On a reading of the grounds, particularly paragraphs which have been extracted above. it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released, on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted. challenge against that order in the higher forum had to be raised. In Ramesh Yadav v. District Magistrate, Etah and others, AIR 1986 SC 315, it was held;

"Merely on the ground that an accused in detention] as an undertrial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed. We are inclined to agree with counsel for the petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well settled principles indicated by this Court in series of cases relating to preventive detention. The impugned order, therefore, has to be quashed."

The facts of this case are squarely covered by the law laid down by the Hon''ble Supreme Court in Ramesh Yadav''s case (supra). In view of the law down by the Supreme Court, the order of detention cannot be upheld and is to be quashed.

I allow the writ petition and direct that the petitioner be set at liberty forthwith, unless he is in lawful detention otherwise.