Sohan Singh vs State of Punjab and Another

Harbans Singh Rai, J.—Petitioner Sohan Singh son of Shri Dalip Singh resident of village Ghurka, Police Station Sarhali, District Amritsar was detained in pursuance of detention order dated 26th of September 1989 Annexure P1, passed by the District Magistrate Amritsar u/s 3(2) read with Section 3(3) of National Security Act, 1980. The petitioner has challenged the order of his detention in this writ petition mainly on the ground that he was already in custody when this order was passed and there was no ground to detain him under the National Security Act.

The petitioner was arrested on 20-8-1989 in case F.I.R. No. 130 dated the 15th of August 1989 under Sections 392 I.P.C. 25/54/59 of the Arms Act and 3/4/5 of the T.D.A. Act. While the petitioner was in jail, the District Magistrate Amritsar passed the detention order.

The petitioner had been ordered to be detained on the ground that he had been acting in a manner prejudicial to the Security of State and maintenance of public orders and that he was an active member of the extremist group known as Khalistan Commando Force headed by Gurjan Singh Rajasthani who posed himself as Chief General of the above said force. Another ground for detention of petitioner was that he worked for the creation of Khalisthan on the direction of Gurjant Singh Rajasthani and that he had links with the extremists. These grounds, in the opinion of District Magistrate,'' were sufficient to order the detention of petitioner with a view to prevent him from further acting in this manner. It was also mentioned in the detention order that due to insufficiency of evidence the petitioner could be admitted to bail and in the event of his liberty there was every likelihood of his again indulging in the prejudicial activities and, thus, there was compelling necessity to pass the detention order against him.

The grounds of detention as mentioned in Annexure P2 are reproduced as under:--

"During the interventing night of 14/15th of August 1989 you along with Hira Singh son of Dalip Singh and Narinder Singh son of Atma Singh Jat r/ o village Vain Poin entered the farm house of Gurnam Singh son of Kesar Singh Jat resident of village Chola. At that time you were armed with 12 bore pistol while your companions Hira Singh was armed with Pistol and Narinder Singh was armed with 12 bore SBBL gun. You all woke Gurnam Singh and asked him to hand over the keys of his tractor. You and your companions were identified on the spot by complainant Gurnam Singh. Then you and your companions took away tractor No. PCC-5638 Make B-275 Mohindera (Inter National) forcibly at the toe of your respective weapons.

To this effect a case FIR No. 130 dated 15-8-89 u/s 392 I.P.C. 25/54/59 Arms Act & 3/4/5 T.D.A. Act was registered in Police Station Sarhali on the basis of statement of Gurnam Singh complainant which is still under investigation. You have not given any application for your bail so far and have been lodged in Central Jail, Amritsar.

On 20-8-89 ASI Joginder Singh along with his police party was present at the bridge of canal minor in the revenue limits of village Khara in connection with Nakabandi when you and your companions came there on the above said tractor. You were driving the tractor while your companions were sitting in it. You and your companions were apprehended and the tractor was taken into police possession vide a recovery memo attested by H. C. Bikramjit Singh No. 3005/TT and Const. Puran Singh No. 3483/T.T.

You were arrested by ASI Joginder Singh and on your interrogation, you admitted that you have close relations with the extremists group known as Khalistan Commando Force headed by Gurjan Singh Rajasthani. You admitted that Gurjant Singh and Narinder Singh extremists of your group met you in a fair held at Dargai Shah near village Karmu-wala, where they instigated you to join with them and fight for the creation of Khalistan. Gurjant Singh Rajasthani gave one 12 bore Pistol to you and Hira Singh each and one 12 bore SBBL gun to Narinder Singh and then directed you all to meet them in the Mand area of village Johal Dhaiwala on 14-8-89. As per programme you along with your companions reached the fixed point at about 10/11 a.m. where Gurjant Singh Rajasthanni along with some other extremists was present. Gurjant Singh Rajasthani directed you all to collect money from the Hindus & Banks by committing robberies and dacoities. He also promised you that those persons who will work more for his purpose will be appointed as officer after establishing Khalistan. You also admitted that during the intervening night of 14/15-8-1989 at about 11.30 P.M. you along with Narinder Singh and Hira Singh entered the farm house of Gurnam Singh and took away his tractor forcibly from his house at the toe of your arms for this purpose. After this you all went to Gurjant Singh Rajasthani with the above said tractor and met him in the area and purchased arms and ammunition of that amount. As per his direction you were going to sell the tractor when you all were apprehended by the police.

On account of the above said activities, I Sarabjit Singh, IAS, District Magistrate, Amritsar being satisfied that you should be detained with a view to prevent you from acting in manner prejudicial to the Security of State and maintenance of public order and therefore I have passed an order for your detention with a view to prevent you from acting in aforesaid manner in future".

The detaining authority has said in the detention order that the petitioner is in custody and he can be admitted to bail due to insufficiency of evidence. The detaining authority further said in the detention order that in the event of liberty of petitioner, there is every likelihood for him to indulge in the prejudicial activities.

On the reading of the grounds, particularly paragraphs, which are extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his prejudicial activities.

The learned counsel for the petitioner has argued that as the petitioner was in custody, there was no likelihood of his release on bail and the detaining authority had acted illegally in ordering his detention. He has relied upon Supreme Court judgment in Ramesh Yadav Vs. District Magistrate, Etah and Others, , where it was held (para 6):

"On a reading of the grounds, particularly that paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed. We are inclined to agree with counsel for the petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well settled principles indicated by this Court in series of cases relating to preventive detention. The impugned order, therefore, has to be quashed."

In Shashi Aggarwal Vs. State of U.P. and Others, , the Supreme Court again reaffirmed the view taken in Ramesh Yadav Vs. District Magistrate, Etah and Others, and said Shashi Aggarwal Vs. State of U.P. and Others, :--

"We will now refer to the two decisions which according to Mr. Yogeshwar Prasad are not in tune with the ratio of the decision in Alijan Mian''s case 1983 SC 1130 : (1983 Cri LJ 1649). In Ramesh Yadav Vs. District Magistrate, Etah and Others, , this Court observed :--

"On a reading of the grounds particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely 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 not ordinarily be passed."

What was stressed in the above case is that an apprehension of the detaining authority that the accused if enlarged on bail would again carry on his criminal activities is by itself not sufficient to detain a person under the National Security Act.

Every citizen in this country has the right to have recourse to law. He has the right to move the court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the Court for bail by clamping an order of detention. The possibility of the court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order. That has been made clear in Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others, where it was observed.

"A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these Should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens."

The facts of the case are clearly covered by the law laid down by the Hon''ble Supreme Court in Ramesh Yadav Vs. District Magistrate, Etah and Others, and Shashi Aggarwal Vs. State of U.P. and Others, .

In view of the law laid down by the Supreme Court, order of detention dated 26th of September 1989, has to be quashed.

For the reasons recorded above, I allow the petition and quash the detention order dated 26-9-1989. The petitioner be set at liberty forthwith unless he is in lawful detention otherwise.