Paramjit Singh alias Pamma vs State of Punjab

Grewal, J.

This petition under Article 226 of the Constitution of India relates to quashment of impugned order of detention under Section 3(3) of the National Security Act, 1980 (hereinafter referred to as the Act) (Annexure P/1) passed by Dist. Magistrate, respondent No. 2 on 1611989 and confirmed by the President of India vide order dated 911990, copy whereof is Annexure P/3.

In brief, unlawful activities prejudicial to the security of State and maintenance of public order attributed to the detenu in the grounds of detention, are, that on 1331989 at about 8.50 P.M., Paramjit Singh alias Pamma detenu along with his associate Ravinder Singh alias Laddi came on a scooter, in the area of Barnala where Inspector Inderjit Singh of C.I.A. Staff Gurdaspur, along with other police officials and officials of B.S.F. was holding a Naka. When the detenu and his associate were signalled to stop, they threw the scooter and started firing on the police party which also returned the fire in safedefence. The detenu got a bullet injury and was apprehended at the spot and from his personal search one 12 bore DBBL gun was recovered. On unloading the said gun, two cartridges of 12 bore were recovered and from further search 2 live cartridges of 12 bore were recovered from right pocket of his pant. In respect of the said incident, a case under Section 307/34 IPC and under Section 25 of the Arms Act as well as under sections 3/4/5 TDA (P) Act, was registered against the detenu on the same day vide FIR No. 50 registered at Police Station Sadar, Gurdaspur. During investigation of the said case, the detenu disclosed that in the year 1984, he was working as a constable in Bihar police. He came to Punjab along with Shri Sital Dass, Superintendent of Police, in the year 1983. In February, 1984, the detenu resigned from the police and after Operation Blue Star, he formed his own gang and prepared a scheme to kill the Hindus. After some time detenu along with others killed Sharkaji Lal in village Bharath as the latter had distributed Ladoos at the time of Operation Blue Star. The detenu also admitted that in March, 1986, he along with Gurmej Singh alias Geja and Makhan Singh Chhit killed Tarsem Lal near Sugar Mill, Batala; in July, 1987 the detenu snatched a rifle from village Sirkian and killed two Hindus at Sahewal at the Flour Mill. The detenu further admitted that in December, 1987, he killed Master Harbhajan Singh Tugalwala After conspiring with Ravinder Singh the detenu wrote a letter to Dr. Madhu of Gurdaspur and in order to extort money the detenu and Ravinder Singh telephoned him. The detenu further admitted that on 631989 he along with his associate Ravinder Singh committed theft of scooter No PAG 8258 Bajaj Chetak, at Athwal and that scooter was recovered from the spot by the police in the aforesaid criminal case (concerning exchange of firing with the police). He also confessed that 12 bore DBBL gun recovered from him, belonging to one Ajit Singh of village Kala Bala had been stolen by him on 7121989 and a case under Section 302/452/34 IPC and under Section 25/54/59 of the Arms Act was registered against him at Police Station, Kahnuwan and the trial of the case was still pending. It was further alleged that Bakhshish Singh Security Agent of Police Station Kahnuwan, gave a source report that many associates of extremists met the detenu and Ravinder Singh and at that time the detenu was instigating them that when he would come out of the jail then he along with Sikh youths including Jagraj Singh alias Toofan Singh resident of Khudi Cheema, Harjinder Singh alias Jinda resident of Butter Kalal, Police Station Qadian, Amrik Singh resident of Harchowal Police Station Sri Hargobindpur, Dalwinder Singh, Member Panthic Committee resident of Dalam Nangal, Police Station, Dera Baba Nanak would continue their struggle against the Government for achieving Khalistan by activating that movement, and that the detenu would recruit more persons and purchase more weapons for this purpose.

On the basis of the aforesaid prejudicial activities, the impugned, order of detention under sub Section 3(3) of the Act was passed against the detenu by District Magistrate, Gurdaspur on 16101989 and the said order was later on confirmed by the President of India under subsection (1) of Section 12 of the Act, on 911990.

The detenu has challenged the validity of the impugned order of detention on the ground of nonapplication of mind by the detaining authority at the time of passing of the impugned order of detention; that the allegations in para No. 2 of the impugned detention order that in the prevailing surcharged atmosphere in the State, successful prosecution in two criminal cases registered against the petitioner (i.e. FIR No. 50 dated 1331989 under Section 307/34 IPC under Section 25/5/59 Arms Act, 3/4/5 TDA (P) Act, Police Station Sadar : Gurdaspur and FIR No. 117 dated 7121988 under section 302/457/34 IPC P.S. Kahnuwan) may not be possible are vague and groundless; that confession of the detenu during the investigation of the first case with regard to two more criminal cases one concerning the Arms Act and the other concerning theft of the scooter cannot be legally relied upon; that even though the detenu was granted bail by the Designated Court on 12th August, 1989 no steps were taken by the State to get the bail order reversed in the higher Court and as such there was no valid ground to detain the detenu; that the aforesaid bail order was never placed before the detaining authority before passing of the impugned order of detention. It was further pleaded that the allegations in the source report that some terrorists had met the detenu while the latter was in jail is palpably false, and without any basis, and on the face of it each ground relied upon by the detaining authority does not indicate that there is any danger to the maintenance of public order, or, security of the State and that there is no material on the record to establish that the detenu is a terrorist, or he is involved in any terrorist activity.

On notice Shri S.K. Bhalla. Under Secretary to Government, of Punjab, as well as Shri Rajinder Singh, District, Magistrate, Gurdaspur have filed separate returns in the shape of affidavits, wherein, it was pleaded that the impugned order of detention has been passed by the detaining authority on the basis of bonafide subjective satisfaction reached after consulting the material on the record with due application of mind. It was further pleaded that the order of bail was without prejudice to the merits of the case and judicial verdict in the said case is yet to be obtained and that the procedure for cancellation of bail is cumbersome and may not be feasible in each and every case, and the fact that the detenu was on bail was duly considered by the detaining authority while passing the impugned order of detention. It was also pleaded that the telegram dated 731989 Annexure P/4 sent by Gurvinder Kaur concerning the arrest of her husband Paramjit Singh on the evening of 631989 is of no consequence and such telegrams are generally sent to create defence evidence; that the confessional statement made by the detenu was voluntary and genuine and in any case factual and correctness of grounds of detention cannot be gone into in the present proceedings, and the preventive detention cannot be challenged on factual grounds. It was also pleaded that the activities of the detenu as enumerated in the grounds of detention besides creating a law and order problem, are, also prejudicial to the security of the State and maintenance of the public order, and the detention order was passed with due application of mind. It was denied that the grounds of detention are verbatim reproduction of the file prepared by the police authorities. It was also asserted that the representation submitted by the detenu on 24111989 was duly considered after obtaining comments from the detaining authority and the same was rejected by the competent authority on 12121989 after due consideration and intimation in respect thereof was sent to the detenu through the Superintendent Central Jail, Gurdaspur on 14th December, 1989.

The learned counsel for the parties were heard.

The impugned order of detention, Annexure P/l, in the instant case was admittedly passed by the detaining authority on 161089. In ground No. 3 it has been specifically mentioned that the detenu was released on bail by the Designated Court on 12th August, 1989. This aspect of the case has been admitted by the State in its return. Curiously enough, this aspect of the case does not find mention either in the detention order, Annexure P/1, or in the English translation of grounds of detention, Annexure P/2. It is quite evident that the fact that the petitioner had been granted bail in the aforesaid criminal case relating to FIR No. 50 dated 1331989 under Section 307/34 IPC and under Section 25 of the Arms Act, as well as under Sections 3/4/5 TDA (P) Act was not considered by the detaining authority at the time of passing of the impugned order of detention. It is true that the order granting bail may not itself be sufficient to falsify the criminal cases registered against the detenu. It is pertinent to note that wife of the detenu had sent a telegram copy whereof is Annexure P/4 concerning the arrest of her husband as well as Ravinder Singh alias Laddi on 6th March, 1989 at 3 P.M. Both these aspects were not duly considered by the detaining authority before passing the impugned order of detention as is evident from the perusal of the said order, as well as grounds of detention.

Another important aspect of the case that according to the details given in the grounds of detention with regard to aforesaid criminal cases relating to FIR No. 50 dated 1331980, the detenu along with his associate Ravinder Singh alias Laddi came on a scooter that evening at about 8.50 P.M. and when signalled to stop they threw the scooter and starting firing, or, that the detenu was injured and had a bullet injury, does not appear to be correct. No medical report in respect of the detenu was brought to the notice of this Court. The omission, on the part of the detaining authority in not considering or ignoring the aforesaid important circumstance clearly indicates nonapplication of the mind, as well as absence of requisite subjective satisfaction on the part of the detaining authority formation, whereof, is a condition precedent in passing a legal or valid order of detention. Nonconsideration of material and factual facts naturally would have an important bearing in influencing the mind of the detaining authority. As such in the present case nonapplication of mind on the part of the detaining authority concerning the aforesaid facts would vitiate the requisite subjective satisfaction on the part of the detaining authority rendering the impugned order of detention invalid. I find support on this point by the authorities of the apex Court in Dharamdas Shamlal Agarwal v. The Police Commissioner and anr., 1989(1) Recent Criminal Reports 454 and State of U.P. v. Kamal Kishore Saini, AIR 1988 SC 208.

A careful perusal of para No. 2 of the grounds of detention Annexure P/2 reveals that the prejudicial activities imputed to the detenu on the basis of source report of Bakshish Singh, Security Agent of Police to the effect that while in judicial custody the detenu indulged in instigating many persons who used to meet him in jail does not appear to be correct. Names of the persons, or, associates of the extremists who used to meet the detenu as well as his co detenu Ravinder Singh alias Laddi in the jail are conspicuous by their absence in the grounds of detention. This is a significant and deliberate omission. In case the names of the persons or associates who allegedly met the detenu in the jail had been mentioned in the grounds of detention, their names could be verified from the jail record, because the names of the persons who sought interview with the detenu inside the jail are recorded in a register maintained by the jail authorities and such a person is required to sign in the register on such entry. Apart from that neither the names, nor, actual number of persons who were allegedly instigated by the detenu and his codetenu Ravinder Singh find mention in the grounds of detention. The allegations of the source report referred to above are clearly vague and indefinite and this aspect of the case, obviously, has deprived the detenu from making any effective representation against his detention, as contemplated under Article 22(5) of the Constitution.

The prejudicial activities imputed to the detenu on the basis of his alleged confessional statement made before the police, during the investigation of the aforesaid case FIR No. 50 of 1989 referred to in para No. 1 of the grounds of detention that detenu along with his associate killed Sharkaji Lal in village Bharath, or, later on killed Tarsem Lal and few others in between March, 1986 and December, 1987, or, that he killed Harbhajan Singh Tugalwala, or, after conspiring with Ravinder Singh he wrote a letter to Dr. Madhu of Gurdaspur, or, that in order to extort money the detenu and Ravinder Singh, telephoned Dr. Madhu, or, that both the detenu and Ravinder Singh committed theft of a scooter No. PAG 8258 Bajaj Chetak or, that the scooter was recovered at the spot in the above mentioned case are quite vague and indefinite, in the absence of other relevant material and details relating to the aforesaid occurrences. Neither there is any mention in the grounds of detention with regard to the weapons carried by the detenu of his other associates, nor, the part attributed to the detenu has been specifically mentioned therein concerning such acts of violence. Besides no details with regard to the dates, or, time when the alleged occurrence took place, find mention in the grounds of detention, Annexure P/2. Such vague allegations or absence of details concerning precise nature of acts of violence attributed to the detenu in the grounds of detention served on the detenu not only adversely affects the quality of subjective satisfaction of the detaining authority, but, this material aspect has certainly deprived the detenu from properly exercising his fundamental right under Article 22(5) of the Constitution, in filing effective representation against the impugned order of detention, Annexure P/l.

I find support on this point by the authority of their Lordship of the Supreme Court in Abdul Razak Nannekhan Pathan v. The Police Commissioner, Ahmedabad and anr., 1989(2) Recent Criminal Reports 293 , wherein in order to make appropriate and effective representation under Article 22(5) of the Constitution of India before the detaining authority, it was observed that the grounds of detention must not be vague but must be specific and relevant. Reference in the afore cited authority in Abdul Razak Nannekhan Pathan''s case (supra) was also made to its earlier authority in Pushkar Mukherjee and ors. v. The State of WestBengal, 1969(2) SLR 635, wherein it was observed as follows :

"Similarly, if some of the grounds, supplied to the detenu are so vague that they would virtually deprive the detenu of the statutory right of making a representation, that again may make the order of detention invalid."

Reliance in this aspect was placed on another decision of the apex Court in Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad City and anr., 1989(1) Recent Criminal Reports 250 , wherein, was held that the ground was extremely vague and gave no particulars to enable the petitioners to make an adequate representation against the order of detention, and it infringed the constitutional safeguard provided under Article 22(5) of the Constitution of India.

As far as recovery of 12 bore double barrel gun from the detenu relating to FIR No. 50 of 1989, or, the allegations that, the said gun belonging to one Jit Singh was stolen, or, in respect of the latter occurrence other criminal case relating to FIR No. 117 was registered against the detenu and others, or, that case is still pending trial, it would not be proper to assume that the said activity was either prejudicial to the security of the State, or, maintenance of public order. Recovery of stolen 12 bore gun and cartridges, or, commission of murder in respect of the occurrence relating to FIR No. 117 in the absence of any specific allegation that the said incident has caused disturbance in public order, or, that such violence cannot be termed on attributed as mere individual acts of the detenu would not necessarily lead to the inference that such violent acts are prejudicial to the security of the State, or maintenance of public order, which tends to disturb, or, dislocate even tempo of the life of the community

Another important aspect of the case is that similar order of detention passed by the District Magistrate, Gurdaspur against Ravinder Singh alias Laddi coassociate of the present detenu on almost similar or indentical grounds was quashed by J.S. Sekhon, J. in Criminal Writ Petition No. 125 of 1990 decided on August 10, 1990.

For the foregoing reasons, the impugned order of detention passed by the detaining authority against the petitioner cannot be legally sustained. The impugned order of detention is hereby quashed and this petition is accordingly allowed. The detenu be set at liberty forthwith if not required in any other case.