Partap Singh vs State of Punjab and anr.

M.M. Punchhi, J.

The District Magistrate, Amritsar, passed an order under Section 3(2) read with section 3(3) of the National Security Act, 1980, against the petitioner, with a view to preventing him from acting in a manner prejudicial to the security of the State and maintenance of public order. This order was passed by the District Magistrate conscious of the fact that the petitioner was already in judicial custody in cases registered against him and that in his view the petitioner was taking steps to get himself released from custody and there was every likelihood of his being set at liberty and in that event to indulge in prejudicial activities in view of his prima facie propensities towards such activities. It is in this manner that the compelling necessity to pass the detention order was recorded.

The grounds of detention are framed as follows :

"........ You frequently go to Pakistan for smuggling purposes and in addition to it, you procure arms and ammunition from Pakistan authorities and then supply the same to the terrorists in Punjab who indulge in killings of innocent persons and also carry out other prejudicial activities. You also supply intelligence about Indian army to the Pakistan authorities thus jeopardizing the security of State. Some of your recorded activities are as under :

That an information was received by Sh. Harjit Singh, SubInspector S.H.O. P.S. Lopoke that Balkar Singh etc. including yourself are known smugglers and you all smuggle goods from India to Pakistan and also supply secret classified information to the Pakistan authorities. In return you all bring opium and arms from Pakistan which is distributed to the extremists in Punjab and you all also harbour the extremists. All of you also contribute to theory that Hindus in Punjab should be killed and their property be looted and such a chaotic conditions be created forcing the Hindus to leave Punjab leading to the establishment of Khalistan. As a result of this information the case FIR No. 131 dated 8.7.1987 under section 414, 216A IPC 3/4 T&D Act 1985 and 25A, Arms Act was registered in P.S. Lopoke which is under investigation.

You were arrested in case FIR No. 131/87 referred in the above para on 28.7.1987 and you were interrogated by Harjit Singh SI/SHO PS Lopoke (admitted about your links with Pakistan authorities and also procurement of arms ammunition from Pakistan authorities which you used to supply to the extremists in Punjab to carry out prejudicial activities, leading to the establishment of Khalistan).

That on 4.7.1987 the B.S.F. party headed by S.K. Shaha, Company Commander, held a Naka on IndoPak Border near B.O.P. 96/10, when you accompanied by others came from Pakistan''s side and on challenging by the BSF party you and others fired at them but none was injured. The BSF party also fired in self defence. Consequently case FIR No. 62 dated 4.7.1987 under Section 307/411/494/34 IPC 25A. Arms Act 3 Indian Passport Act 1920 3/4 T&D A(P) Act was registered in PS Lopoke against you and ors. You were arrested in this case on 28.7.1987 and during interrogation by Harjit Singh S.I./S.H.O. P.S. Lopoke you had confessed about your visits to Pakistan for smuggling purposes and the procurement of arms and ammunition to be supplied to the terrorists in Punjab to carry out their anti national activities. You had also admitted to have harboured hardcore extremists and you also admitted to have supplied Indian Army intelligence to Pakistan authorities. you had also admitted about your close contacts with the Pakistan authorities. You had further admitted having acquaintances with Amardip Singh alias Dimpy s/o Harminder Singh r/o Rani Ka Bagh who had gone to Pakistan for training purposes and also having interview with him in Pakistan. You further admitted that Amardip Singh alias Dimpy after his return from Pakistan used to say with you. You further admitted that Dimpy had been getting arms from you to carry out the activities. You further admitted you contacts and meetings in Darbar Sahib with Gurnam Singh r/o Gharyala, who is active member of Commando Force and also used to supply arms to him. You further admitted that the arms supplied to Gurnam Singh went into the hands of extremists through Bhai Mohkam Singh and Surat Singh Khalsa. You also admitted about your final destination of the establishment of Khalistan.

That Bhai Mohkam Singh s/o Jagir Singh r/o Mohariwal P.S. Mamdot Dist. Ferozepur and Surat Singh Khalsa s/o Santokh Singh r/o Hassanpura P.S. Lakha Dist. Ludhiana were arrested in case FIR No. 151 dated 28.8.1987 under Section 124A, 153A, IPC 3/4 T & D Act (sic) 1985 PS Act `D'' Division Amritsar on 28.8.1987. ASI Dara Singh PS `E'' Division interrogated Mohkam Singh and Surat Singh Khalsa and during interrogation they admitted their links and contacts with you and Gurnam Singh Ghariala. They further admitted that you bring the arms from Pakistan and supply the same to the extremists through Gurnam Singh Ghariala. They further admitted that you used to supply the Indian Army intelligence to the Pakistan authorities.

That Amardip Singh alias Dimpy s/o Harminder Singh Saberwal r/o Rani Ka Bagh, Amritsar was arrested in case FIR No. 192 dated 31.8.1987 under Section 3/4 T & D A(P) Act, 4/5 Explosive Substances Act 1908 PS Civil Lines, Amritsar on 31.8.1987 on the allegations that he alongwith others had chalked out a plan to liquidate the Senior Police Officers of district Amritsar. He was interrogated by Gurdip Singh S.I./P.S. Civil Lines and during interrogation Amardip Singh admitted having links with you. He further admitted that you had been meeting him in Pakistan when he was undergoing training there. He further admitted that you had been instigating for the murders of maximum Hindus and to create disorder which ultimately would lead to the establishment of Khalistan. He had also admitted that you had been supplying arms to him and others and you also used to provide shelter to the extremists."

Learned counsel for the petitioner contends that the petitioner had nowhere even attempted to file bail applications in the cases mentioned in the grounds and thus the District Magistrate had no reason to come to the satisfaction that the petitioner was likely to be released on bail and resume his prejudicial activities. Reliance has been placed on two decisions of the Supreme Court in Ramesh Yadav v. District Magistrate, Etah and others, AIR 1986 SC 315 and Binod Singh v. District Magistrate, Dhandbad, Bihar and others, AIR 1986 Supreme Court 2090. Reliance has also been placed on two unreported Single Bench decisions of this Court in Crl. Writ No. 1467 of 1987 (Mohinder Singh v. The State of Punjab and another, 1988(1) R.C.R.(Criminal) 485) decided on January 11, 1988 and Crl. Writ No. 1731 of 1987 (Chanchal Singh v. The State of Punjab and another) decided on January 8, 1988. In these cases the principle has been laid down and recognised that on the ground that an accused in detention as an under trial prisoner was likely to get bail, an order of detention under the National Security Act should ordinarily be not passed. On the strength of that principle, it is claimed that the order of detention is unsustainable.

I am afraid, the principle as laid down by the Supreme Court is not absolute when read in the right perspective of the qualifying words. It is true that ordinarily an order of detention under the National Security Act should not be passed merely on the ground that an accused in detention as an under trial prisoner was likely to get bail. It leaves out from its scope extraordinary cases in which an order of detention under the National Security Act can be passed. Now whether the present is an extraordinary case of the kind which is covered up by the qualification need not be spelled out, for the likelihood of the petitioner to be released on bail in the cases referred to in the detention order, is not the sole factor which led to the passing of the order of detention. There are other grounds as well and if one is sustainable, the order of detention under Section 5A of the National Security Act is sustainable. The associations of the petitioner and his alleged utterances, when documented and laid before the detaining authority, could be sufficient material for the detaining authority to come to the subjective satisfaction that keeping at large the petitionr would be hazardous and would need preventing him from acting in a manner prejudicial to the security of State and maintenance of public order by detaining him. So, I will not go into the niceties of the instant cases registered against the petitioner the material which led the detaining authority to believe that he was likely to get bail and the denial of the petitioner that he had done nothing to warrant such a suspicion that he was likely to get bail. The ground of attack, to mind, in the circumstances is still born and need not be gone into in intricate detail.

It has next been contended on behalf to the petitioner that the alleged utterance of the petitioner to police officers were in the nature of confessions made to them and were not admissible per se in evidence before Courts of law. This is a matter which should not detain me even for a moment, for the detaining authority had arrived at a subjective satisfaction, on the material laid before him and not merely on the alleged confessions. It cannot be said even for a moment that such material was not capable of being looked into by the detaining authority.

Lastly, it has been contended that he affidavit of the District Magistrate, the detaining authority, has not correctly been attested, for it was sworn before an Additional District Magistrate, some one who is not even an Executive Magistrate under the Code of Criminal Procedure. There is, however, no such taint to the affidavit filed by the Under Secretary to the Government, Punjab who has sworn an affidavit on behalf of the State of Punjab. In the presence of the affidavit of the Under SEcretary to govt, Punjab, on behalf of the State of Punjab, the suggested defect in the affidavit of the District Magistrate is of no consequence especially when nothing has been urged against the District Magistrate in the form of personal bias or mala fide.

Having viewed the matter from all angles, I find no infirmity in the detention order and fully justified from the returns filed by the respondents. Accordingly, this petition is dismissed.