Ranjit Singh alias Nidharak vs State of Punjab and anr.

Ujagar Singh, J.

The District Magistrate, Faridkot passed detention order dated 1.4.1987 under Section 3(2) read with section 3(3) of the National Security Act, 1980 qua the petitioner and the same was approved by respondent No. 1''s order dated 10.4.1987, as shown by Annexure P6. The grounds of detention, as handed over to the petitioner, are Annexure P5.

The petitioner has filed this petition to challenge the aforesaid detention order and the approval order.

The facts leading to the detention order have been narrated in the grounds of detention Annexure P5. The incidents relating thereto are mentioned as under :

(i) That on 30.8.1986, at about 10/11 a.m., one Khushihaul Singh son of Nadar Singh, Rai Sikh, resident of Jawia Singh Wala, Police Station Guru Har Sahai, had come to Mandi Guru Har Sahai and due to the visit of Baba Joginder Singh, there was a big gathering near Petrol Pump of Teja Singh, Iqbal Singh. Kanshi Singh also met him there. They set down in the Pandaal for hearing the lecture. About 5 trucks and 8/9 cars/jeeps carrying people, including the petitioner''s Dhadi Jatha also came there in those vehicles. The petitioner cam on the stage and delivered a speech that the Motor Cycle of Khalistan Commando force started from Delhi, which, firstly killed Makan in Delhi and then after coming to Ferozepur, killed Nachhattar Singh of Police Station Mamdot who had beaten the boys and after this Police informer Darshan Singh Chandu was killed. Even now this motor cycle runs effectively. Sant Jarnail Singh Bhindran Wale Khalsa is alive. Who says he had died? "Indira dian kakrian kaun khawaunda, Ate Jarnail Singh de phattee kaun chukda." They also said that they have to create `Khalistan'' and will overthrow Rajiv Govt. Thereafter Baba Joginder Singh delivered his lecture and after his lecture, Baba Joginder Singh and his companions boarded cars and trucks and left for Ferozepur and Khushihaul Singh aforesaid also went to Ferozepur in one of the trucks and came back on 31.8.1986 and was proceeding to Police Station for reporting the matter to the Police and when he reached near Octroi Post, Sadiq Road, Nazar Singh ASI Police Station Guru Har Sahai met him who recorded his statement. On the basis of the above statement, FIR 164 dated 31.8.1986, under Section 124A of the IPC, Police Station Guru Har Sahai was registered against the petitioner.

(ii) On 8.9.1986, at about 10.00 a.m., HC Hardas Dass of Police Station Mahilpur, District Hoshiarpur, was on duty in plain clothes in Gurdwara Saheedan, Mahilpur, where Baba Joginder Singh, Convenor of United Akali Dal, alongwith his companions, came from Garh Shanker in 3 trucks, 2 cars and one jeep and in the gathering, Kartar Singh Manak, Mohinder Singh Rode and the petitioner recited different "Warrs" and praised the murderers of Smt. Indira Gandhi and said that the Police was killing innocent Sikhs in concocted encounters. All this was being done at the instance of Central Govt, and Barnala Govt. Baba Joginder Singh and his companions demanded release of the Army personnel detained in Jodhpur jail and said that they would take revenge for the blood of Sikh youngmen and raised slogans, "Sant Bhindran Wale Zindabad, Khalisthan Zindabad, Barnala Sarkar Murdabad, Khalistan Banke Rahega". On the basis of this statement of Hardas Dass HC, case FIR 128 dated 20.9.1986, under Section 124A of the IPC and section 5 of the Terrorist & Disruptive Activities (Prevention) Act, 1985, was registered at Police Station Mahilpur, District Hoshiarpur against the petitioner.

(iii) On 8.9.1986, Baba Joginder Singh Khalsa, acting convener, United Akali Dal came to Gurdwara Singh Sabha, Hoshiarpur, alongwith 100/150 companions on jeeps cars and trucks, where they were welcomed by Shri Hardial Singh Gill, Advocate, Hoshiarpur, Senior VicePresident of the said Dal of the District. The youngmen, accompanying them, on this occasion, raised the following slogans. "Sant Jarnail Singh Bhindra Wale Zindabad, Baba Joginder Singh Khalsa Zindabad, Khalistan Zindabad". A religious congregation was held consisting of 150/200 persons in the Gurdwara in the presence of Guru Granth Sahib, which continued till 415 p.m. Shri Hardial Singh, Senior VicePresident acted as Stage Secretary. The following "Ragi Jathas" addressed the congregation:

(i) Mathar Singh Mallku,

(ii) Mohinder Singh Rode and

(iii) the petitioner.

Ragi/Kaweeshari Jathas, apart from reciting their poems, also condemned Punjab Govt. and it was told as to how the Central Govt. demolished and got demolished Darbar Sahib and murdered `Singhs'' but its revenge was taken by Beant Singh and Satwant Singh and :Ouhana ne Smt. Indira Gandhi gaddi charraia", now Barnala Govt. is committing atrocities on `Singhs'' in the same manner and is murdering Singhs by concocting false encounters. These traitors will also not be spared. Now it is the turn of Barnala, Balwant Singh and Tohra and now their days are also numbered. He also commits traitorship with Sikh `Quam'' and he will also meet with the same fate as the Sikh youngmen had been treating with traitors in the parts. On the basis of the above report of SI Dhanna Singh, Police Station City, Hoshiarpur, case FIR 185 dated 2.9.1986 under Section 124A, IPC, 4 of the Terrorist & Disruptive Activities (Prevention) Act, Police Station City, Hoshiarpur was registered.

(iv) On 10.11.1986 ASI Gurbax Singh, Station House Officer, Police Station Sadiq, alongwith HC Balbir Singh, HC Gurdev Singh, Constables Baldev Singh, Sukhdev Singh and Amrik Singh were present in village Khappiwanwali on the occasion of `Bhog'' ceremony in connection with the killing of Waryam Singh of that village in a Police encounter in the area of Police Station Sadar, Kotkapura. On that occasion, Kulwant Singh of Khukhrana, Giani Ram Singh, Advocate, Muktsar, the petitioner and Giani Ram Singh Granthi addressed one after the other, a gathering of about 8,000 persons who had collected at that place. First of all, Kulwant Singh Kanwal, a companion of the petitioner, delivered a speech, saying "Waryam Singh has been killed in a false police encounter. Revenge would be taken from both the police officers who concocted such encounter within a week. Petitioner and others would take rest only after killing them so that no Police Officer may kill any Sikh youngman in a false police encounter in future. Whatever witnesses are cited by the Police Officers against extremists, will also be done away with shortly. They would murder Hindus in Punjab and would create Khalisthan. Thereafter Giani Ram Singh, Advocate delivered a lecture, in similar language, adding further that the petitioner and his companions would force the Hindus in Punjab, to leave, by killing them, intimidating them and that Khalistan would automatically be brought into existence. The petitioner, in his turn, also spoke in similar tone and language. The petitioner also sang a Waar in praise of Waryam Singh, "Balle Oae Waryam Singh Tethon Balhare, Desh Quam Lai kar gia hain too sache kare." People were impressed considerably on hearing such "Waars". The petitioner also added that Hindus living in Punjab should be made to run away by killing them at the earliest and Khalistan would automatically be formed and they would live after forming their separate Govt. Subsequently, Giani Ram Singh also delivered a provocative speech. He also called Waryam Singh a martyr and alleged that Police had killed him in a false encounter. It was their duty to tell the State Govt. and the Central Govt. that they would not live without formation of Khalistan by taking revenge from those police officers who were responsible for false police encounters, within a week. The petitioner also said that those Police employees who appeared as false witnesses against Sikh extremists, and also Police touts giving false secret information, should be done away with immediately so that they may live after the formation of their separate Khalistan. Thus, the petitioner and his other companions instigated the gathering aforesaid through their speeches and lectures on the basis of which, case FIR 149 dated 2.12.1986, under Sections 3/4 of the Terrorist & Disruptive Activities (Prevention) Act and 13 of the Unlawful Activities Act and 153A of the IPC, Police Station Sadiq was registered.

Regarding the last incident, case was registered only on 2.12.1986. No reasons have been assigned for the delay. The above said 4 incidents are dated 30.2.1986, 8.9.1986, 8.9.1986 and 10.11.1986. The detention order was passed only on 1.4.1987 and therefore, there is a lapse of 7, 63/4, 63/4 and 43/4 months respectively, before the passing of the said order. Taking of action after so much period on the part of the District Magistrate is not explained on the record. It is a clear case of absence of continuity proximity between the incidents and the detention order. The incidents having become stale, could not form the basis of the detention order.

The detention order and also the approval order cannot be sustained on this ground alone.

However, there is another argument based on the petitioner being in jail and there being no immediate chance of his being released on bail. In the petition, it is specifically stated that Khushihal Singh, on whose information, FIR No. 164 was registered, has given a counteraffidavit before the Designated Court, Ferozepur which Court ordered the release of the petitioner in the said case on 23.12.1986. The bail order is Annexure P1.

The two incidents occurred on 8.9.1926. Regarding the first, case FIR No. 128 of Police Station Mahilpur, District Hoshiarpur was registered only on 20.9.1986 and concerning the second incident on 8.9.1986, FIR 185 of Police Station City, Hoshiarpur was also registered on 20.9.1986.

The 4th incident had occurred on 10.11.1986, but FIR 148 was registered only on 2.12.1986, Police Station Sadiq, District Faridkot.

The aforesaid facts have not been denied by the respondents in the return.

The petitioner was already in custody long before the detention order was passed. The detention order did not take notice of any steps for release of the petitioner on bail. Rather, the grounds of detention Annexure P5 indicate that the petitioner (giving his full address of the village) was informed that he had a right to make a representation against the detention order and if he wanted to do so, he could do so at the earliest to the Punjab Govt., through the Superintendent of Jail concerned. The nonmentioning of the particular jail wherein the petitioner was lodged shows that the District magistrate had no knowledge about the state of custody of the petitioner. Similarly, the approval order Annexure P6 describes the petitioner. as :

Ranjit Singh (a) Nidharak s/o

Sh. Harbans Singh Wala.

r/o Deep Singh Wala.

P.S. Sadiq Distt. Faridkot

and is conspicuously silent as to in which Jail he was lodged at that time. A copy of the approval order was also sent to the above address of the petitioner instead of sending it to the particular jail where he was in custody. There is abundant authority that in such like cases, the detention order cannot be said to have been passed on the subjective satisfaction of the District Magistrate. Reference may be made to the observations made by their Lordships of the Supreme Court in Ramesh Yadav v. District Magistrate Etah & others, 1986 SC 315 on which reliance was placed in Gulab Mehra v. State of UP, 1987(2) Recent CR 416 : 1987 III SVLR (CR) 108 , to the effect that merely on the ground that an accused in detention is an undertrial prisoner or was likely to get bail, the order of detention should not ordinarily be passed. The stress of the judicial pronouncement is that bail application is to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised.

With the foregoing observations in view, this petition is accepted and the detention order and also the approval order are quashed. The petitioner be set at liberty forthwith, if not needed in any other case.