Nishan Singh vs State of Punjab

Ujagar Singh, J.

Detention order dated 15th December, 1986 (Annexure P1) passed by the respondent, as also grounds of detention (Annexure P1/A), and the order of approval Annexure P2, are challenged through this petition.

According to the grounds of detention, four incidents have been given which are mentioned as under :

(i) On Ist April, 1986 at about midnight, one Puran Singh, an old mate of the petitioner (Nishan Singh) alongwith one Nura and one Salim, contacted one Surjit Singh at his village Kalanjar, Police Station Voltoha, District Amritsar, and there in the presence of the petitioner, Nura handed over 75 biscuits of gold to said Surjit Singh and they had a separate talk with each other. The petitioner, the said Nura and Puran Singh were to reach the att on the day following Baisakhi day, in the evening;

(ii) On 14th April, 1986, according to the said plan, the petitioner and the said Puran Singh contacted said Surjit Singh in his village while one Bhola who was already known to the petitioner was already there. Surjit Singh handed over Indian currency worth Rs. 18 lacs in three bags to the petitioner who was instructed to pass on the same to said Nura at the att fixed under a tahli tree after crossing the border from a place in between the BSF picket, and in exchange, bring gold from him. Surjit Singh aforesaid promised to pay the petitioner an amount of Rs. 2,000/ for this job. On the same night, the petitioner, said Puran Singh and Bhola lifting one bag each containing Indian currency and after adopting a zig zag route, reached the place of att and handed over the bags containing the Indian currency to the said Nura who, alongwith said Salim and another unknown Muslim, had come there with 100 biscuits of gold and the same were given on 15th April, 1986. The petitioner and his said two companions brought the gold biscuits and gave it to said Surjit Singh who paid Rs. 2,000/ each to the petitioner and said Puran Singh;

(iii) During the month of April, 1986, on its last Tuesday, according to a preplan, the petitioner alongwith said Bhola and Puran Singh contacted said Surjit Singh during the night at his house and obtained three bags containing Rs. 24 lacs in Indian currency and lifted one bag each to the att through the same route and handed over the same to said Nura. Nura alongwith two of his unknown companions had brought one jacket containing 85 biscuits of gold and handed over the same to the petitioner and appointed the next att for 13th May, 1986, at the same place. The petitioner and his two companions brought the gold to India the same night and handed over the same to said Surjit Singh who again paid Rs. 2,000/ each to the petitioner and said Puran Singh.

(iv) On the evening of 13th May, 1986, the petitioner, said Puran Singh and Bhola assembled at the house of said Surjit Singh. Puran Singh obtained one 12 bore pistol and ammunition from said Surjit Singh who gave him Rs. 19 lacs in Indian currency in three bags. The same night the petitioner, said Puran Singh and Bhola lifted one bag each and left for the att. At some distance from there, the petitioner was confronted by the BSF Naka party and said Puran Singh opened fire at the BSF party from his pistol, and in return the Naka party also fire at the petitioner. The petitioner and his companions started running, leaving behind a bag containing Rs. 6 lacs in Indian currency. Both the companions of the petitioner succeeded in running away with their bags and later on handed over the same to said Surjit singh. In this connection, case FIR No. 69 dated 14th May, 1986, under Sections 307, 411, 414, Indian Penal Code, and section 25 of the Arms Act was registered in Police Station Khem Karan, District Amritsar. The petitioner went underground due to fear of being arrested but the Khem Karan police arrested him on 2nd June, 1986, in the said case.

On the grounds of the said activities of the petitioner, the Under Secretary Home, Punjab, passed detention order Annexure P1 directing the petitioner to be detained with a view to preventing him from indulging in the abovenoted prejudicial activities in future. JUDGMENT Annexure P2 approving the said detention order was passed on 14th August, 1987, and the same was intended to be conveyed to the petitioner at his village address which is mentioned as under :

"Nishan Singh s/o Shri Niranjan Singh,

r/o Kalas P.S. Khem Karan, Distt. Amritsar."

Counsel for the petitioner has vehemently argued that the detention order P. 1 based on grounds of detention P1/A, and the approval order P 2 are liable to be quashed mainly on two grounds, i.e., (i) that the activities alleged against the petitioner had become stale and there was left no continuity or proximity between the said activities and the order of detention, and (ii) that the petitioner was allowed bail by the trial court in the said case and no attempt was made to arrest him in pursuance of the detention order for which there is no explanation given by the respondent and as a result thereof the order has become punitive, and is no longer preventive.

The counsel for the respondent has supported the impugned orders on the grounds mentioned therein and he contends that the same are based on the subjective satisfaction of the respondentauthorities, and, therefore, this Court cannot go into the validity thereof.

I have considered the arguments put forth by the counsel for the parties and also the case law cited at the bar by both the sides in support of their respective contentions. I think the case can be decided mainly on the ground of the alleged activities having become stale and the fact that there is no explanation on the part of the respondent as to why the petitioner was not arrested till the Ist or 2nd of June, 1987 (In some documents, the date of arrest is shown as Ist of June, 1987, while in others as 2nd of June, 1987).

In para 2 of the petition, it is specifically mentioned that the petitioner remained in custody of the police in the said case but was released on bail by the trial court. In para 2 of the reply given by Shri V.V. Chadha, Under Secretary to Govt. Punjab, Home Department, the release of the petitioner on bail has been admitted. JUDGMENT Annexure P1 was pased only on December 15, 1986, and it is further mentioned in the reply that the petitioner was arrested on 2nd June, 1986, in that case, and his statement was recorded on 5th of June, 1986. It is also mentioned therein that strenuous efforts were made to arrest the coassociates of the petitioner and ultimately said Surjit Singh was arrested and interrogated on 3rd of August, 1986. A proposal for the detention of the petitioner is said to have been moved and forwarded to the District magistrate only on 26th of September, 1986. Firstly, there is no explanation as to what steps were taken by the respondentauthorities after 5th of June, 1986 for getting an order of detention passed. Even if it is acceped for the sake of argument that the order of detention could not be passed unless the statement of the petitioner during interrogation was corroborated by some other evidence, and for that purpose the statement of said Surjit Singh was required to the recorded, we are left with no explanation why no action was taken after the statement of the said Surjit Singh had been recorded, till 26th of September, 1986, i.e. for a period of about 53 days. Again it is not explained why the matter was delayed after the 29th of September, 1986 till 15th of December, 1986 when detention order PI was passed. After that, the petitioner was arrested only on Ist or 2nd of June, 1987. In case the arrest of the petitioner was really intended, the trial court could be approached by the concerned authorities to summon the petitioner in pursuance of the bail order. The petitioner was admittedly released on bail and in the case the dates must have been fixed for his appearance when he could be easily arrested but there is nothing on the file to indicate whether any attempt was made to do so. In a similar situation their Lordships of the Supreme Court in Harnek Singh v. State, AIR 1982, SC 682 dealt with a matter where a case under Sections 307, 414 and 411, Indian Penal Code, was registered against the petitioner there on 27th February, 1980, and he was ordered on 4th of November, 1980 to be detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974), and was put behind the bars on 10th of July 1981. The acts alleged in that case were also the subjectmatter of the prosecution launched against the detenu and during those proceedings he was on bail and was appearing in Court on every hearing until he was detained. It was observed by their Lordships that on reason was put forth for the detenu not being taken in custody in pursuance of the order of detention right from January 2, 1981 till July 10, 1981, and ultimately it was held that in those circumstances, the detention took the character of punitive, rather than preventive, action and was therefore, vitiated. It was further held that the offences which were said to have been committed occurred as far back as 27th February, 1980, and the same could hardly form a ground for detention on a date as late as 10th of July, 1981, the gap between the two being wellnigh 11/2 years.

In the present case also, the alleged activities took place on the last action, i.e., the 14th of May, 1986, and the petitioner was arrested only on Ist/2nd of June, 1987, inspite of the fact that he had been released on bail by the trial court. The facts of this case are quite similar, if not identical with Harnek Singh''s case (supra), and on that basis, detention order P1 and the approval order P2 are liable to be quashed.

Another aspect of this case is that the petitioner had admittedly been released on bail by the trialcourt. Nothing is shown on the file as to whether any step were taken by the respondentauthorities to get his bail cancelled from an appropriate court because of his alleged activities. In Ramesh Yadav v. District Magistrate, Etah AIR 1986 SC 315, it was observed that 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, and 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 be passed ordinarily. These observation have been relied upon in Gopal Mehra v. State of U.P., 1987(3) SVLR (Cr.) 108. In view of these observations, it was in the knowledge of the authorities concerned that the petitioner had already been released on bail but still they slept over the matter except passing the order of detention, and that too only on 15th of December, 1986. This inaction on the part of the respondentauthorities cannot be appreciated, especially when one activity has been alleged against the petitioner between the registration of the said case, i.e., 14th of May, 1986 and 15th December, 1986, when order Annexure P1 was passed. This lackness on the part of the respondent shows that they did not want to take any preventive action either by passing an order of detention or any other appropriate order. Again, from 15th of December, 1986 till the date of the arrest of the petitioner, i.e. Ist/2nd of June, 1987, the slackness on the part of the respondentauthorities to take any action against the petitioner is confirmed. It may be intentional or otherwise but the same cannot be ignored while considering the validity of the order of detention.

In view of the foregoing discussion, detention order annexure P1 and approval order annexure P2 cannot be sustained and the same are hereby quashed. This petition is, thus accepted.

The petitioner is directed to be released forthwith unless he is required in any other case.