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Judgment
S.S. Sodhi, J.
the challenge here is to the order of the Governor of Punjab of May 8, 1987 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 March 2, 1986. At the time of passing of the impugned order, there were as many as 10 cases registered against the petitioner, the relevant particulars of which are as under
Sr. No. FIR Police Station Offences Under Sections Date of arrest
19 of 15.3.1986 Division 1 Jalandhar 297, 379 I.P.C. 3/4 of the Terrorists & Disruptive Activities (Prevention) Act 2.3.1986
46 of 21.3.1986 Division 2 Jalandhar 382 I.P.C. 24.2.1987
28 of 18.4.1986 do 302 I.P.C. do do 2.3.1987
123 of 6.12.1986 Division 2, Jalandhar 307/34 I.P.C. 25 of the Arms Act. do do 21.12.1987.
1 of 5.1.1987 do 307/34 I.P.C. 25 of the Arms Act do do 21.12.1987.
4 of 7.1.1987 Division 1 Jalandhar 302/34 I.P.C 25 of Arms Act 3/4 of the Terrorists & Disruptive Activities (Prevention) Act 3.3.1987
4 of 1.1.1987 Division 6 Jalandhar 392/34 I.P.C. 25/27 of Arms Act do do 5.3.1987.
21 of 22.1.1987 do 307/302 34 of I.P.C. 25/27 of Arms Act do do 9.2.1987
11 of 22.1.1987 Division 1 Jalandhar 307/34 I.P.C. 25 of Arms Act do do 3.3.1987
30 of 7.2.1987 Division 6 Jalandhar 25 of Arms Act 7.2.1987
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. The law is, of course, wellsettled as pointed out by Mr. S.S. Kang, Assistant AdvocateGeneral, Punjab, and also so held by the Supreme Court in Smt. Poonam Lata v. M.L. Wadhawan and another, 1987(2) Recent Criminal Reports 100 : AIR 1987 SC 2098 , that the fact that the detenu is already in detention, does not take away the jurisdiction of the detaining authority in making an order of preventive detention. What is necessary in a case of that type is to satisfy the Court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that the order of detention was necessary. The contention raised by the counsel for the petitioner, however, was that in passing the order of detention, the detaining authority did not take note of the number, nature or seriousness of the cases registered against the petitioner, nor did it consider the possibility of the petitioner''s release on bail or otherwise, whereby an opportunity could have become available to him to indulge in his alleged prejudicial activities. This omission, on the part of the detaining authority, it was argued, rendered the impugned order unsustainable. Relied upon in this behalf being the judgment of the Supreme Court in Benod Singh v. District Magistrate, Dhanbad, Bihar and another AIR 1986 SC 2090, which was followed by this Court in Criminal Writ Petition No. 41 of 1987 (Satnam Singh v. State of Punjab) decided on November 3, 1987.
In Benod 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.
Such thus being the settled position in law, the bald statement in the impugned order to the effect that the detaining authority was aware of the fact that the petitioner was involved in a criminal case and that the extent and nature of this prejudicial activities rendered his detention essential, clearly does not fulfil the requirements of the rule in Benod Singh''s case (supra). This order cannot, therefore, stand.
Not without merit was the further submission of the counsel for the petitioner that there does not appear to have been any proper application of mind by the detaining authority in passing the impugned order, as the reference there was merely to the petitioner being involved in `a criminal case'' whereas, as shown earlier, there were in fact ten criminal cases registered against him.
The impugned order of detention, for the foregoing reasons, cannot be up held and is accordingly hereby quashed.
This petition is thus accepted.