Mohinder Singh alias Titu vs State of Punjab and anr.

S.S. Sodhi, J.

The challenge here is to the order of the Governor of Punjab of April 27, 1987 issued under subsection(2) of Section 14 of the National Security Act, 1980 read with Section 3 thereof.

The impugned order of detention was passed and served upon the petitioner when he was already in custody having been arrested as far back as September 15, 1985 under first information report 143 of 1985 for offences under Sections 3 and 4 of the Terrorists and Disruptive Activities (Prevention) Act, 1985. Besides this, there are four other cases since registered against the petitioner. Those being ;

(i) FIR 32 of May 1, 1986 under Section 25 of the Arms Act pertaining to police Station `Division No. V'', Jalandhar ;

(ii) FIR NO. 57 of March 24, 1986 under Section 302 read with Section 307 of the Indian Penal Code of police Station `Division No. VI'', Jalandhar ; and,

(iii) FIR 53 of April 5, 1986 under Section 302, and,

(iv) 307, 356, 226, 225 and 224 of the Indian Penal Code and Section 25 of the Arms Act relating to police Station `Division No. IV'' Jalandhar and FIR 22 of February 22, 1986 under Section 379 of the Indian Penal Code also of Division No. IV, Jalandhar.

This prior arrest and detention of the petitioner in jail for the aforesaid offences is what now constitutes the foundation of the infirmity imputed to the impugned order of detention. Relied upon in this behalf being the judgment of the Supreme Court in Binod Singh v. District Magistrate Dhanbad, Bihar and another, A.I.R. 1986 Supreme Court 2090, which was followed by this Court in Cr. Writ petition 1100 of 1987 (Satnam Singh v. State of Punjab), decided on November 3, 1987.

In Binod Singh''s case (supra) it was held that where an order of detention under Section 3(2) of the National Security Act is served upon the detenu, who is already in jail in respect of a serious charge like murder and there is no indication that this detenu might be released or that there was such a possibility of release taken into consideration by the detaining authority properly and seriously before the service of the order of detention, the continued detention of the detenu, under the Act, could not be justified.

Turning to the present case, it will be seen that there is no mention in the order of detention, annexure P/1, of the petitioner already being in custody. All that is mentioned is that he was involved in a criminal case, but there again, there was no indication there that the possibility of his release from such custody was at all taken into account. All that was said was that the extent and nature of prejudicial activities indulged in by the detenu were such that his detention was essential. This clearly does not fulfil the requirements of the rule in Binod Singh''s case (supra).

The fact as pointed out by the Assistant Advocate General, Punjab, that the petitioner has since been ordered to be released on bail in all the cases registered against him, does not alter the situation as the requirement of law is that at the time of the passing of the detention orders, the detaining authority must take these factors into account. The omission to do so renders the impugned order unsustainable.

The impugned order of detention is accordingly hereby quashed. This Petition is thus consequently accepted.