Shingara Singh @ Shari vs State of Punjab

S.D. Bajaj, J.

First Information Report No. 47 dated March 11, 1988 was registered against the detenupetitioner Shingara Singh alias Shari in Police Station Gharinda, district Amritsar under sections 148/149/307/411/414 of the Indian Penal Code, section 25 of the Arms Act and sections 3/4/20 of the I.P. Act. The petitioner was arrested therein on April 30, 1988 by Gharinda police. The learned trial Court released the petitioner on bail on June 4, 1988. Detention order, Annexure P1, based on grounds of detention, Annexure P2, was clamped on the petitioner on November 29, 1988, and the petitioner was detained in pursuance of it on January 4, 1989.

In Criminal Writ Petition No. 1260 of 1989, the petitioner has assailed the impugned order of detention on the grounds that it was not passed. by the detaining authority on its subjective satisfaction after due application of mind; that the last prejudicial activity attributed to the petitioner being of March 11, 1988, there was no nexus or proximity between it and the impugned order of detention, dated November 29, 1988, which was actually served on the petitioner on January 4, 1989, and that the detaining authority was not appraised of the petitioner being already on bail with effect from June 4, 1988, nor had it taken this aspect of the matter into consideration.

In the reply filed on behalf of the State of Punjab, it was asserted that the detention order Annexure P1 was passed by the detaining authority after due application of mind to the peculiar facts and circumstances obtaining in this case on its subjective satisfaction; that the petitioner had no doubt been admitted to bail in case FIR No. 47 dated March 11, 1988 before being detained on the basis of the detention order, but the prejudicial activity attributed to the petitioner was of early March, 1988 and that there was close. nexus between the prejudicial activity and the order of detention.

I have heard Shri A.S. Sandhu, Advocate, for the petitioner, Shri S.S. Saron, A A.G. Punjab, for the State and have carefully gone through the annexure appended to the writ petition.

The admission of the respondent that the detenu petitioner was already on bail in case FIR No. 47 dated March 11, 1988, with effect from June 4, 1988, renders the detention order illegal because the factum of the detenupetitioner being already on bail is not adverted to either in the detention order, Annexure P1, in the grounds of detention, Annexure P2, nor is set out therein as to why was it necessary to detain him in spite of the detenu petitioner having not indulged in any prejudicial activity while on jail. In identically similar circumstances it was observed by the Supreme Court in Anant Sakharam Raut v. State of Maharashtra and another, 1988(1) RCR(Crl.) 619 (SC) : AIR 1987 SC 137: "The one contention strongly pressed before us by the petitioner''s counsel is that the detaining authority was not made aware at the time of detention order was made that the detenu had moved applications for bail in the three pending cases and that he was enlarged on bail on 1311986, 1411986 and 1511986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an undertrial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention. In our view this is the short manner in which the two cases can be dispensed of. If the petitioner is found disturbing law and order or misusing the bail granted to him, the authorities would be at liberty to move the appropriate Court to get the bail orders cancelled. One does not know how the detaining authority would have acted if he was made aware of the above details. We are not satisfied that this is a fit case to restore to preventive detention. We refrain from referring to the other grounds urged before us and from examining them. The petitioner is entitled to succeed on the first ground. We hold that there was clear nonapplication of mind on the part of the detaining authority about the fact that the petitioner was granted bail when the order of detention was passed."

Then again the prejudicial activity attributed to the detenupetitioner is of first week of March 1988. The detention order Annexure P1 was passed against him on November 29, 1988, more than eight months thereafter and the petitioner came to be detained in pursuance of it on January 3, 1989 nearly ten months after it. In similar circumstances it was observed by our own High Court in Amrik Singh @ Mika v. The State of Punjab and another, 1987(1) Recent Criminal Reports 443 and Swinder Singh alias Mohinder Singh v. State of Punjab and another, 1988(2) Chandigarh Law Reporter 557, "The last prejudicial activity attributed to the petitioner is of May 15, 1988. The order of detention, Annexure P1, was passed against the petitioner by the detaining authority on January 23, 1989, eight months and one week thereafter and actually made effective through detention of the petitioner on its basis on March 13, 1989, after about ten months of the last prejudicial activity. Amrik Singh alias Mika, v. The State of Punjab and another, 1987(1) Recent Criminal Reports 443 and Nishan Singh v. State of Punjab, 1988(1) Recent Criminal Reports 386 are both authorities of our own High Court for the view, in a similar situation their Lordships of the Supreme Court in Harnek Singh v. State, AIR 1982 SC 682 dealt with a matter where a case under sections 307 414 and 411, Indian Penal Code, was registered against the petitioner thereof. On 27th February, 1980, and he was ordered on 4th of November, 1980 to be detained under Section 3(1) of the Conservation, of Foreign Exchange and Prevention of Smuggling Activities Act 52 of 1974, and was put behind the bars on 10th of July, 1981. The acts alleged in that case were also the subjectmatter of the prosecution launched against the detenu and during those proceedings he was on bail and was appearing in Court on every hearing until he was detained. It was observed by their Lordships that no reason was put forth for the detenu not being taken in custody in pursuance of the order of detention right from January 2, 1981, till July 10, 1981, and ultimately it was held that in those circumstances, the detention took the character of punitive, rather than preventive action and was, therefore, vitiated." "It has repeatedly been laid down by this Court as well as the final Court that the purpose of passing detention orders is not to punish the detenu for his activities in the distant past but is rather to prevent him from carrying on the activities which are otherwise found to be prejudicial under the Act." JUDGMENT of detention, Annexure P1, thus gets vitiated on this score as well.

In result, criminal writ succeeds and is allowed. Detention order, Annexure P1, based on grounds of detention, Annexure P2, is quashed and the detenupetitioner Shingar Singh alias Shari is ordered to be set at liberty forthwith; unless required in some other case.