Manjit Singh vs State of Punjab and ors.,

S.S. Dewan, C.J.

By this writ petition under Article 226 of the Constitution of India, the petitioner Manjit Singh challenges the validity of his detention by the order of the District Magistrate, Jalandhar, under Section 3(2) read with Section 3(3) and Section 14A of the National Security Act, 1980 (for short, the Act) on his being satisfied that the detention of the petitioner was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of the Public JUDGMENT2. The order of detention is based on two grounds the first of which relates to an incident of October 3, 1986 and the second of February 3, 1989. The grounds of detention are as follows :

During the year 1986, you were posted as Constable at PAP Headquarter, Jalandhar Cantt. Constable Sardul Singh of PAP was in possession of Quarter. No. 19 in the PAP Complex. You and your associates viz. SI Gurbachan Singh, HC Ajit Singh, HC Kulwant Singh, Constable Sardul Singh, Constable Dalwinder Singh, Constable Balwinder Singh and Constable Manjit Singh of PAP and Sukhdev Singh@ Sukha Sepoy used to hold meetings in the aforesaid quarter No. 119 of Constable Sardul Singh and used to make plans to kill J F. Riberio, Director General of Police for the reasons that Sh. Ribetio DGP had insulted the Sikhism and injured the sentiments of the Sikhs by sending the police inside the Golden Temple, Amritsar and killed many Sikh youths in fake police encounters and was committing atrocities on the Sikhs. On 15.9.1986, you alongwith SI Gurbachan Singh, C. Sardul Singh, C. Balwinder Singh, C. Dalwinder Singh, C. Balwinder Singh, C. Kewal Singh, HC Ajit Singh and HC Kulwant Singh and Sukhdev Singh @ Sukha offered `Aardas'' and took oath in Gurdwara Beant Nagar for the achievement of your goal, i.e. to kill Sh. J.F. Riberio DGP.

In pursuance of the conspiracy hatched by you and your associates a, on 3101986 at about 6.45 a.m., C. Sardul Singh armed with rifle, C. Dalwinder Singh armed with carbine, C. Balwinder Singh in uniform of DSP armed with carbine, HC Ajit Singh armed with carbine and one other person wearing the uniform of HC armed with machinegun came to the GO Mess in the PAP complex in Jeep No. 471 PAT which was being driven by Vijaypal Singh and opened fire at Sh. Roberio. DPG with intent to kill him, who had a narrow escape. The assailant, also fired at C. Joginder Singh who was on Sentry duty and injured him and he succumbed to his injuries later on HC Kulwant Singh also received an injury during the firing. While fleeing the culprits shot dead C. Kuldeep Raj and injured C. Lakshman pargode of the CRPF, in this connection case. FIR No. 69 dated 3041986 u/s 302/307/148/149/120B/419/170. IPC 25 Arms Act and 3/4 TDA(P) Act, was registered at P. S. Cannt, Jalandhar. During the investigation of the case statement or HC Sucha Singh was recorded on 3.10.1986, in which he named the four culprits and stated about your involvement in the murderous assault Sh. Riberio DGP. C. Sardul Singh was, Arrested on 30101996 while you and C. Kewal Singh were arrested on 8111986 and on interrogation by the police you and your associates C. Sardul Singh and Kewal Singh admitted your involvement in this case. Copies of FIR No. 69/86 P. S. Cannt. Jalandhar, statement of HC Sucha Singh dated 3101986, para No 1 of CD No. 50 dated 24111986, para No. 2 of CD No. 26 dated 30101986, extract of para No. 2 of CD No. 29 dated 1111986, paras No. 2 and 4 of CD No. 35 dated 8111986 and paras Nos. 5 and 7 of CD No. 36 dated 9111986 of this "case are attached an Annexures I,II,III, IV, V,VI, VII, VIII and IX.

On 321989, AS[ Gian, Singh of P.S. Cantt. Jalandhar was present near Chowk, Regal Cinema alongwith other police officials in connection with patrolling where he received secret information that you and Kewal Singh s/o Inder Singh Jat r/o Thande PS Sadar. Amritsar, were residing in Kothi No. 28, Haqiqat Road, Jalandhar cannot for the last few days. That you and Kewal Singh give shelter to extremists, Gurbachan Singh Manochahal, Sukbdev Singh Jhamka and Jaspal Singh Sobhana of Khalistan Commando Force, in order to avoid their arrest by the police. That you and Kewal Singh provide them financial aid, meals clothes and also keep the arms of the extremists with you and supply the same to them when needed. On the basis of above information, case FIR No. 9 dated 321989 u/s 212/216A IPC and 3/4 TDAP Act was registered at P.S. Cannt. Jalandhar.

On the same day 321989, ASI Gian Singh raided aforesaid Kothi No. 28, Haqikat Road Jalandhar Cantt and arrested you and your associate Kewal Singh and that time you both raised slogans `Khalistan Zindabad''. On interrogation by the police, you and Kewal Singh admitted that you have been giving shelter to aforesaid extremists and providing them meals. The statement of Kalyan Dass, Member Panchayat, Dakoha, PS Sadar, Jalandhar, was also recorded on 3.2.1989 in which he stated that 3/4 day back he had seen Sukhdev Singh Jhamaka and gurbachan Singh Manochahal coming out of Kothi No. 28, Haqikat Road along with you and Kewal Singh. Copies of FIR No. 9/89 of PS Cantt. Jalandhar, statement of Kalyan Dass dated 321989, para Nos. 5, 7 and 8 of CD No. 1 dated 321989 of this case are attached as Annexures X. XI, XII, XIII and XIV".

The two grounds set out above are nothing but narration of facts bringing out the antecedents history of the petitioner. It is obvious therefrom that the ground for making out the order for his detention is one and the same viz. to prevent him from indulging in such criminal acts affecting public order.

Mr. G.S. Grewal. learned counsel for the petition or has submitted that it is virtually impossible for the petitioner to be released on bail in the aforesaid criminal cases in view of the fact that these cases had been registered for commission of offences, punishable under the Terrorist and Disruptive Activities (Prevention) Act and that since the detenu would remain in custody there would hardly be any chance for him to inference with the efforts of the Government in coping with the terrorist and disruptive activities. There appears to be substance in his contentions.

Apart from the registration of criminal cases against the petitioner referred to above, no other reliable material has been brought on record to show that the petitioner if released an bail, is likely to commit activities prejudicial to the maintenance of public order and security of the State or that there were compelling, reasons to justify his preventive detention in view of the fact that the petitioner is already under detention on various charges for committing criminal offences.

The matter is not resintegra K.S. Bhalla, J. in U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)Yadvinder Singh, alias Bira v. The State of Punjab and another, 1988(1) Recent CR 419 . has observed as under :

"The power of directing preventive detention given to The appropriate authorities must be exercised in exceptional cases as contemplate by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness, of the facts necessitating preventive custody of a person for social defence which as shown above is badly lacking in this case. If a man is in custody and there is no imminent possibility of his being released, power of preventive detention cannot be exercised. If any authority is needed on the point, Ramesh Yadav v. District Magistrate Etah and others, AIR 1986 SC 315 and bBinod Singh v. District Magistrate, Dhanbad, Bihar and others, AIR 1986 SC 2090, can be looked into with advantage, 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."

For the foregoing reasons, I am not satisfied that this is a fit case to resort to preventive detention and the petitioner is entitled to succeed on the ground that he was already in custody and so could not have possibly indulged in any prejudicial activity.

I accordingly hold that there was clear non application of mind on the part of the detaining authority. The order of detention dated 14.2.89 and the subsequent confirmatory order are, therefore quashed. The writ petition is allowed to the extent indicated above. Thus, however, will not affect the detenu''s detention under the criminal cases. There is no statement in the petition that the detenu is on bail. Therefore, there will be no order for release of the detenu.