Ravinder Singh alias Laddi vs State of Punjab and Others

Jai Singh Sekhon, J.—In this petition, Ravinder Singh, detenu, craves for the quashment of the order of his detention Annexure P-1 dated 25-9-1989 of District Magistrate, Gurdaspur, whereby he was ordered to be detained u/s 3, Sub-section (2) read with Section 3, Sub-section (3) of the National Security Act (for short called ''the Act'') with a view to prevent him from indulging in activities prejudicial to the maintenance of public order and security of the State. The detenu was already in custody in proceedings u/s 108/151 of the Code of Criminal Procedure (for short called ''the Code''). The detention order along with the grounds of detention Annexure P-2 was served upon the detenu on the same date, that is, 25-9-1989.

The brief r�sum� of facts relevant for the disposal of this writ petition is that on 13-3-1989, Inspector Inderjit Singh of C.I.A. Staff Gurdaspur along with other Police Officials and Officials of the Border Security Force was holding a Nakabandi in the area of Barnala. At about 8.50 p.m. Ravinder Singh detenu along with one Paramjit Singh came on a scooter. They were signaled to stop, upon which the detenu threw away the scooter and started firing at the police party. The police party also fired in return, which resulted in injuring the companion of the petitioner. Both these persons were apprehended at the spot. The petitioner was found carrying a.12 bore pistol containing one empty cartridge in his chamber. Further search of the petitioner petitioner yielded the recovery of the live cartridge from the right pocket of his pants. A case u/s 307/34 of the Indian Penal Code and u/s 25 of the Arms Act read with Sections 3/4 of the Terrorist and Disruptive Activities (Prevention) Act was got registered against the petitioner and his companion at Police Station Sadar Gurdaspur vide F.I.R. No. 50 of 1989. In that case, the petitioner was released on bail on 12-8-1989. The petitioner during interrogation in that case admitted having entered into conspiracy with Paramjit Singh and wrote a letter on the pad of Khalistan Commando Force to Dr. Madhu of Gurdaspur in order to extort money and they also sent a message on telephone to aforesaid Dr. Madhu. He also admitted having committed a theft of scooter on 6-3-1989, in the area of village Athwal, and that the scooter which they were driving at the time of their apprehension was the same. It is also maintained that during his judicial custody in the above referred case, vide source report given by Bakshish Singh, Security Agent of Police Station Kahnuwan, many associates of extremists met the petitioner and aforesaid Paramjit Singh in jail and apprised them that when they will come out, they will meet some Sikh youths including Jagraj Singh, Harjinder Singh, Amrik Singh and Dalwinder Singh, who were struggling with the Government for the achievement of Khalistan and they will plan to recruit some more persons and purchase weapons so that Khalistan could be formed. They also instructed those persons to instigate other persons for the achievement of Khalistan. It is further alleged that on 22-8-1989, the petitioner was found addressing some persons at Bus Stand Kahnuwan to the effect that he will not allow this: Government to remain and will form his own Government in Punjab. The petitioner was then apprehended by ASI Charan Singh in proceedings under Sections 108/151 of the Code. On such like allegations the District Magistrate, Gurdaspur, has passed the above referred order of detention.

In the writ petition, the petitioner challenges the validity of the order of detention on the ground of non-application of mind by the detaining authority contending that the order of the trial Court granting bail to the petitioner in the parent case on the basis of the father and wife of the detenu having sent telegram to the higher authorities that the detenu was apprehended by the police since 6-3-1989 was not placed before the detaining authority. It was also maintained that the detaining authority did not apply its mind to the allegations in the source report and regarding the improbable version of the detenu having delivered the speech in the presence of police officials at Bus Stand Kahnuwan. It is also maintained that the petitioner was apprehended by the police just after his release from the jail on 12-8-1989 and kept in illegal custody till his arrest was shown on 22-8-1989 in proceedings under Sections 108/151 of the Code.

On notice, Shri S. K. Bhalla, Under Secretary to Government of Punjab, as well as Shri Rajinder Singh, Superintendent, Central Jail, Amritsar, and the present District Magistrate, Gurdaspur, have filed separate returns in the shape of affidavits contending that the detaining authority had passed the detention order after full application of mind and upon its subjective satisfaction. It was also maintained that the bail order was duly considered by the detaining authority and the factum that the detenu was on bail has specifically been mentioned in the grounds of detention. They have, however, denied the factum that the detenu was arrested outside the jail on 12-8-1989 just after his release on bail or that he was illegally detained. The District Magistrate has further stressed that the order of bail cannot be taken as order of acquittal and that the detenu did make a speech in the presence of A.S.I. Charan Singh, Head Constable Gurcharan Singh, constable Dalip Kumar and other persons mentioned in the calendar under Sections 108/151 of the Code.

During the pendency of this writ petition, the learned counsel for the petitioner also produced a copy of the order dated 27-7-1989 of the learned Additional Judge, Designated Court, Nabha, granting bail to the petitioner in support of his contention that the petitioner was granted bail by holding that he was already in police custody since 13-3-1989 and thus there was no question of his being arrested by the police in an encounter on 13-3-1989.

I have heard the learned counsel for the parties besides perusing the record.

There is considerable force in the contention of the learned counsel for the petitioner that the order dated 27-7-1989 of the Additional Judge, Designated Court, Nabha, allowing bail to the detenu in the parent case registered against him vide F.I.R. 50 of 1989 at Police Station Sadar Gurdaspur was not placed before the detaining authority at the time of passing the order of detention as in the order of detention Annexure P-l as well as in the grounds of detention Annexure P-2, it is not specifically mentioned that the detaining authority did apply its mind to the above referred order of granting bail to the petitioner. Thus the belated version of the present District Magistrate in the return or of the Under Secretary, Home, to the Government of Punjab to the effect that the detaining authority did apply its mind to the bail order is of no consequence, especially when it is conceded by Mr. Saraon that the copy of this order is not on the original file of the detaining authority. Thus there is no escape but to conclude that the bail order was not placed before the detaining authority at the time of passing the order of detention. The operative part of the bail order dated 27-7-1989 reads as under:

"This case was got registered by Inderjit Singh, Inspector, CIA Staff, Gurdaspur that there was a firing by the accused upon the police party. It will be, however, seen that there was nobody having been injured in the police firing. It has come in the report u/s 173, Cr. P.C. that there was a saying by the accused that one of them had been injured and they had surrendered to the police. A careful perusal of the file would, however, show that there was no medical report on the file. It means that nobody either from the side of the accused or from the side of the police had been injured in this firing. All this looks impossible.

"Moreover, the case is of 13-3-89 while the copies of the telegrams from the side of the accused are of the previous dates."

A bare glance through the above referred order leaves no doubt that the Der signated Court was influenced by the factum that the relations of the accused had given telegram to the effect that the police had detained the accused earlier to 13-3-1989. No doubt the observations of the bail order in this regard are not final and this cannot be treated as an order of acquittal, yet all the same, had it been placed before the detaining authority, it would have put the authority to thinking that the police may have falsely implicated the accused in the above referred case especially when there was no medical report on the file as mentioned in this bail order, which also ex facie belied the version of one of the accused having been injured in the encounter.

In similar circumstances, the apex Court in Dharamdas Shamlal Agarwal Vs. Police Commissioner and Another, , held the order of detention as invalid on the ground of non-application of mind by observing in para No. 12 of the judgment as under:

"From the above decision it emerges that the requisite subjective satisfaction, formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. It is clear to our mind that in the case in hand, at the time when the detaining authority passed the detention order this vital fact, namely, the acquittals of the detenu in case Nos. mentioned at serial Nos. 2 and 3 have not been brought to his notice and on the other hand they were withheld and the detaining authority was given to understand that the trial of those cases were pending. The explanation given by the learned counsel for the respondents, as we have already pointed out, cannot be accepted for a moment. The result is that the non-placing of the material fact namely the acquittal of detenu in the above said two cases resulting in non-application of minds of the detaining authority to the said fact has vitiated the requisite subjective satisfaction, rendering the impugned detention order invalid."

Again the apex Court had taken a similar view in State of U.P. Vs. Kamal Kishore and Another, by holding towards the fag end of para No. 7 as under:

"The High Court, therefore, was justified in holding that the assertion made in the return that even if the material had been placed before the detaining authority, he would not have changed the subjective satisfaction as this has never been accepted as a correct proposition of law. It is incumbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act. This finding of the High Court is quite in accordance with the decision of this Court in case of Ashadevi Mehta (Detenu) Vs. K. Shivraj, Addl. Chief Secretary to the Govt. of Gujarat and Another, and S. Gurdip Singh Vs. Union of India (UOI) and Others, ."

Thus it is a clear case of non-application of mind to the facts and circumstances of the case by the detaining authority.

The question then arises whether the allegations regarding the other prejudicial activities of the detenu are severable from the above referred activity of 13-3-1989 are not vague as in that case, the provisions of Section 5A of the Act would validate the order of detention, even if one of the prejudicial activities imputed to the petitioner is found sufficient to infer his future propensity to indulge in similar activities if not detained in custody.

The provisions of Section 5A of the Act read as under:

"5A. Grounds of detention severable.--Where a person has been detained in pursuance of an order of detention (whether made before or after the commencement of the National Security (Second Amendment) Act, 1984) u/s 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly--

(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are--

(i) vague,

(ii) non-existent,

(iii) not relevant,

(iv) not connected or not proximately connected with such person, or

(v) invalid for any other reason whatsoever,

and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in Section 3 with reference to the remaining ground or grounds and made the order of detention;

(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds."

A careful scrutiny of the other prejudicial activities imputed to the petitioner in the grounds of detention in the light of the provisions of Section 5A reproduced above reveals that the prejudicial activity imputed to the petitioner on the basis of source report of Security Agent Bakhshish Singh of Police Station Kahnuwan to the effect that while in judicial custody in the above referred case registered against the detenu vide F.I.R. No. 50 of 1989 at Police Station Kahnuwan on 5-8-1989, the detenu had indulged in instigating many other persons who used to meet him in jail. This allegation figures in para No. 2 of the grounds of detention which reads as under:

"On 5-8-89 Bakshshish Singh Security Agent PS Kahnuwan gave a source report that many associates of extremists meet you and Paramjit Singh and you were instigating them that when you will come out of Jail then those sikh youths including Jagraj Singh alias Tofan Singh r/o Khudi Cheema Harjinder Singh alias Jinda r/o Buttar Kalan PS Qadian, Amrik Singh r/o Harchowal PS Srihargobindpur, Dalwinder Singh Member Panthic Committee r/o Dalam Nangal r/o Dera Baba Nanak who are struggling with the Govt. for the achievement of Khalistan, you will meet them soon and you will activate the movement of Khalistan and you will plan to recruit more and to purchase weapons so that Khalistan be formed. Whosoever meets you, you instigate in every way for the achievement of Khalistan."

A bare glance through the above source report leaves no doubt that the names of the persons or associates of the extremists who used to meet the detenu and Paramjit Singh in the jail are conspicuously missing from this report. It does not appear to be an innocent omission but a delibrate one as the person giving the source report was aware that if he would specifically mention the names of the associates, then the interview record of the jail may not bely the same. It is noteworthy that whoever interviews a detenu inside the jail his name is recorded in the register and such person is required to sign or thumb-mark such entry. The matter does not rest here as in this report, the time of the petitioner and his companion Paramjit Singh having instigated other persons or the actual number of those persons is also not mentioned therein. Thus there is no escape but to conclude that the source report is certainly vagure and the detaining authority has failed to apply its mind to its vagueness.

Regarding the other prejudicial activity imputed to the detenu eminating in his confessional statement before the police during the investigation of the above referred case registered vide F.I.R. No. 50 of 1989, alleged confession of the detenu has been reproduced towards the end of para No. 1 of the grounds of detention as under:

"During investigation of this case you admitted that you along with Paramjit Singh alias Pamma r/o Tugalwala after conspiring wrote a letter on the letter pad of Khalistan Commando Force which was already in your possession to Dr. Madhu of Gurdaspur in order to extort money and you and Paramjit Singh also telephoned to extort the money. You also admitted that on 6-3-89 you and Paramjit Singh committed theft of scooter No. PAG-8258 Bajaj Chetak at Athwal and the scooter was recovered on the spot in the above mentioned case."

A bare glance through the above referred confessional statement leaves no doubt that it is vague because the date of writing the letter or the date and time of contacting Dr. Madhu on telephone for extracting money did not figure therein. Thus this vagueness of the alleged confession in the grounds of detention served upon the petitioner would not only reflect adversely on the bona fides of subjective satisfaction of the detaining authority but would also show that the detenu was debarred from his fundamental right enshrined under Article 22(5) of the Constitution for filing an effective representation. In this confessional statement the detenu is alleged to have admitted having committed the theft of a scooter bearing No. 8258 on 6-3-1990, at village Athwal. This incident of theft appears to be an individual act and could not be said in any manner an act likely to cause a disturbance in public order. The apex Court in Arun Ghosh Vs. State of West Bengal, , after elaborate discussion had drawn a fine distinction between individual acts resulting in breach of law and acts likely to cause disturbance of public order by holding that public order embraces more persons of the community than law and order and that public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity. It was further held that the degree of disturbance and its effect upon the life of the community in a locality is the determining factor whether the disturbance amounts only to a breach of law and order. This view was again endorsed by the apex Court in Gulab Mehra Vs. State of U.P. and Others, , by holding that whether abaci relates to law and order or public order depends upon the impact of the act on the life of the community or in other words the reach, and effect and potentiality of the act if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act which will affect public order.

Thus by no stretch of imagination, it can be said that the act of stealing a scooter would amount to disturbance of the public order.

The only other prejudicial activity imputed to the detenu is contained in para No. 3 of the grounds of detention. It reads as under:

"That on 22-8-89, you were giving a sessionist speech after collecting the persons at Bus Stand Kahnuwan and were saying that you will not allow this Govt. to remain and you will form your own Govt. in Punjab, you were apprehended by S. I. Charan Singh u/s 108/151, Cr. P.C."

In the return filed by the District Magistrate as well as by the Under Secretary, Home, it is mentioned that ASI Charan Singh, Head Constable Gurcharan Singh, Constable Dalip Kumar, some officials of the, Border Security Force and some other persons mentioned in the calendar were then present. A mere glance through the above referred allegations leaves no doubt that it is quite vague as the time of delivering the speech does not figure therein. On the face of it, it is not believable that the detenu will indulge in making such speech in the presence of the police officials and the members of the Border Security Force. Thus this activity is not only vague but inherently improbable. The detaining authority has failed to apply its mind to this aspect of the matter. Moreover, the vagueness of the report has denied the petitioner the valueable right of his challenging the detention by filing an effective representation, the only safeguard provided under Article 22(5) of the Constitution.

For the foregoing reasons, there is no option but to quash the order of detention of the petitioner by accepting this writ petition. It is ordered accordingly. The petitioner be set at liberty forthwith, if not required in any other ease.