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The National Security Act, 1980
Article 22(5) in The Constitution Of India 1949
Section 3 in The National Security Act, 1980
The Explosive Substances Act, 1908
Section 3 in The Explosive Substances Act, 1908

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Punjab-Haryana High Court
Gurwinder Singh vs The State Of Punjab And Ors. on 28 February, 1990
Equivalent citations: 1991 CriLJ 1588
Author: J S Sekhon
Bench: J S Sekhon

ORDER

Jai Singh Sekhon, J.

1. Through this petition the petitioner challenges the validity of the detention order dated 28-9-1989 Annexure P-1 passed by the District Magistrate, Gurdaspur, Under Section 3(2) read with Section 3(3) of the National Security Act, 1980 (as amended upto date). The above referred order was served upon the detenu on the same day along with the grounds of detention.

2. The brief re'sume' of relevant facts as given in the grounds of detention are that on 20-5-1988, some bomb explosions took place in the area of Police Stations City and Sadar Pathankot resulting in the death of some persons and injuries to some others. A case for offences Under Sections 302/307 of the IPC and Under Sections 4/5 of the Explosive Substances Act as also Under Sections 3/4 of the Terrorist and Disruptive Activities (Prevention) Act was registered vide FIR No. 89 of 1988 at Police Station City Pathankot. In that case the petitioner was arrested on 23-12-1988 and during interrogation he admitted his involvement in the aforesaid bomb explosions. It is further maintained that Shri Janak Raj, Sub Inspector of CID/CES, Pathankot, gave a source report on 10-7-1989 that the aforesaid bomb explosions were caused by the detenu. This Sub Inspector also reported that the detenu instigated the persons who came to meet him in the jail to commit offences against the Government and that the detenu propagated the idea of Khalistan. The report further shows that the detenu have relations with Harjinder Singh alias Jinda and Harjit Singh alias Hira and persuades them to cause bomb explosions to take revenge of the blue star operation and that khalistan is to be formed in all eventualities. The source report further reveals that the detenu had been supplying the weapons to extremists and indulging in instigating persons who visited him to go to Pakistan for procuring arms and ammunitions in order to create disturbances by killing the people in Punjab and other provinces.

3. The petitioner has challenged his detention only on three grounds. The first is that there is no nexus between the alleged activity and the order of detention which was passed about 1 year and 3 months after the incident of bomb explosions. The second attack pertains to the vagueness of the source report contending that it has resulted in debarring the petitioner from his right of effective representation. The third ground pertains to the non-supply of the copy of the source report to the detenu.

4. In the counter affidavit filed by Shri S.K. Bhalla, Under Secretary to the Government of Punjab, Department of Home Affairs and Justice, it is averred that the detention of the detenu was perfectly valid and that the detaining authority was aware of the petitioner being already in custody in the bomb blast case. It was brought to the notice of the detaining authority that the charge against the petitioner may not be proved for want of sufficient material to connect the petitioner with the crime and that as the prejudicial activities indulged in by the petitioner were of serious nature, there was a compelling necessity to pass the detention order with a view to prevent the petitioner from indulging in such like activities in future in case of his release from custody. It is further maintained that as the petitioner remained in judicial custody up to the date of the passing of detention order, so the nexus between the prejudicial activity and passing the order of detention remained alive. It is also stressed that the detaining authority after examining the material on the record was subjectively satisfied to detain the petitioner Under Section 3 of the National Security Act Shri S.S. Channy, IAS, District Magistrate, Gurdaspur, in his affidavit maintained that there were recent prejudicial activities in which the petitioner was indulging as per source report dated 10-7-1989 given by S.I. Janak Raj and on that basis, the detention order was passed.

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

6. The alleged activity imputed to the petitioner regarding some explosions at Pathankot took place on 20-5-1988 and the petitioner was arrested on 23-12-1988 in that case whereas the detention order Annexure P-1 was passed by the District Magistrate, Gurdaspur, on 29-8-1989 i.e. after one year and 3 months of the incident of bomb explosions and about 8 months of the arrest of the petitioner in the bomb explosion case. Thus certainly there is a long gap of time between the alleged incident of bomb explosions and the passing of the detention order Under Section 3 of the National Security Act. Mr. S.S. Saraon, the learned Assistant Advocate General, Punjab, tried to explain this gap on the assumption that since the petition was being detained in the parent case, the necessity to pass the detention order arose after he had started taking steps for procuring bail. Under these circumstances, it was maintained that the order of detention is self-explanatory and thus there was reasonable nexus between the incident of bomb explosion and the detention order.

7. A Bench of the apex Court comprising five Judges in Sk. Serajul v. State of West Bengal, AIR 1975 SC 1517 : (1975 Cri LJ 1328) had held that eight months' delay in passing the order of detention makes the genuiness of the subjective satisfaction of the detaining authority doubtful and quashed the detention order by holding as under in para No. 2 of the judgment : "The order of detention was made on 24th August, 1972 and it was based on the subjective satisfaction of the District Magistrate, Burdwan that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. This subjective satisfaction, as the grounds of detention furnished to the petitioner show, was founded on three incidents of breaking open railway wagons and looting their contents committed by the petitioner and his associates. One was an incident on 21-11-1971, the other was an incident on 24-11-1971 and the third was an incident on 15-1-1972. Though the last incident occurred on 15th January, 1972, the order of detention was not made until 24th August, 1972, and even after the order of detention was made, the petitioner was not arrested until 22nd February, 1973. There was thus delay at both stages and this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate, Burdwan recited in the order of detention."

It was further held that each case must defend upon its own peculiar facts and circumstances as the detaining authority may have a reasonable explanation for the delay and that might be sufficient to dispel the inference that its satisfaction was not genuine. Again in Anand Prakash v. The State of U.P. and Ors., Judgments Today 1989 (4) SC 557, the apex Court had dealt with the delay of two months in passing the detention order from the date of arrest of the detenu as under : "The learned counsel also contended that there is an unexplained delay which makes the ground of detention not proximate vitiating the order of detention itself. The theft of the wire was on 14-2-1989 and the FIR was registered on 15-2-1989 On that day itself as seen from the record Jagdish, Santosh and Munshi Sharma were shown as accused on the basis of some information. The house of Jagdish was raided on 3-3-1989 and on the same day the factory of the detenu was raided and 20 k.g. of melted wire was recovered from Munshi Sharma but no action was taken till 2-5-1989 against the detenu. On being arrested on 2-5-1989 detenu moved a bail application and the detention order itself was made on 3-5-1989. Though bail was granted, in view of the detention order he could not be released from jail. In spite of the fact that the recovery statement itself was made as early as on 3-3-1989 no action was taken till 3-5-1989. Nothing more is stated in the detention order. The delay has also not been satisfactorily explained in the counter statement of the respondents. The ground instance, therefore, could not a proximate cause for a sudden decision to take action under the National Security Act and this also vitiates the order."

8. A bare perusal of the above referred findings of the Supreme Court leaves no doubt that mere detention of the detenu in the substantive criminal case is not always considered to be good ground for explaining the delay in passing the detention order and the alleged activity imputed to the detenu.

9. The observations of the Supreme Court in Yogendra Murari v. State of U.P. AIR 1988 Supreme Court 1835 : (1988 Cri LJ 1825) to the effect that delay of four months after the incident was of no consequence as the detenu was already in judicial custody are quite instructive for judging the proximity of incident detention in this case. But in the instant case, there is delay of 1 year and 3 months from the alleged incident and of about 8 months from the arrest of the detenu and passing the detention order. Thus under these circumstances simply because the detenu was being confined in the Jail in the substantive offence, cannot be said to be good ground for explaining the unreasonable delay on the part of the detaining authority in passing the detention order on 29-8-1989. Moreover, from the reply given by Mr. S.K. Bhalla, Under Secretary, it appears that the detention order was passed by the detaining authority as it was brought to its notice pertinently that there were no chances of success of the bomb explosion criminal case, which in turn shows that the detention order was not passed belatedly on the factum that the petitioner was taking steps to get himself released on bail but on the ground that the above referred criminal case would ultimately fizzle out.

10. Mr. S.S. Saraon then tried to justify the passing of the detention order on the basis of the source report dated 10-7-1989 of S.I. Janak Raj regarding the activity of the detenu. This source report figures in para No. 2 of the ground of detention served upon the detenu. It reads as under : "S.I. Janak Raj of CID/CES Pathankot gave a source report on 10-7-1989 that bomb explosions were caused by you on 20-5-1988 and he also reported that you instigated persons who come to meet you in the jail to commit offences against the Govt. and you propagate in favour of Khalistan and you have relations with Harjinder Singh alias Jinda r/o Fitter Kalan P.S. Qadian and Harjit Singh alias Hira s/o Ran Singh Jat r/ o Wazir Chak P.S. Dhariwal and you press them for causing bomb explosions to take revenge of Blue Star Operation and you say that Khalistan is to be formed in all eventualities. Source report further reveals that you had been supplying weapons to extremists and you also instigate the persons who visit you to go to Pakistan for bringing arms and ammunition to create disturbances by killing the people in Punjab and other provinces.

A bare perusal of the above report leaves no doubt that the first portion of the report relates to the bomb explosion incident which took place on 20-5-1988 and thus of no consequence. The other portion of the source report is vague as it is not disclosed as to who had met the detenu while being confined in Jail what to say of disclosing the name of the Jail where the detenu was being confined when those persons met him and the detenu propagated the formation of Khalistan or that he instigated those persons for bringing arms and ammunitions from Pakistan in order to create disturbances by killing the people of Punjab and other provinces. The detail of the alleged relations of the detenu with Harjinder Singh and Harjit Singh is also conspicuously missing therefrom. It is also not acceptable that the Jail authorities would allow the detenu to persuade his interviewers in indulging in such like activities or that in that case they would not get a report lodged with the concerned authority. Thus such like vague report cannot be used as basis for subjective satisfaction of the detaining authority in coming to the conclusion that the detenu has a future propensity of breach of breach of public order and security of State, if released from Jail.

11. The apex Court in Gulab Mehra v. State of U.P., AIR 1987 SC 2332 : (1988 Cri LJ 168) had commented upon such a vague report in the head-note extracted from para No. 11 of the judgment as under :

"The detention was made on basis of police report and a police complaint. The report does not disclose any particulars about the shopkeepers who have been terrorised and threatened for payment of money nor the names of any of the witnesses in whose presence the threat or terror was given and money was demanded are mentioned. The report is absolutely vague and it is not possible for the detenu to give an effective representation against the aforesaid ground which is one of the constitutional requirements enjoined in Article 22(5) of the Constitution. The complaint of police also does not disclose any particulars as to the shopkeepers in whose presence the alleged bombs were thrown by the appellant and his associate and who were terrified and panic-stricken and put down their shutters, nor the names of any of the witnesses have been mentioned in respect of the said incident."

12. Again this view was reiterated in Abdul Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad, 1989 SCC (Cri) 679.

13. In view of the rule of law laid down by the Supreme Court in the above referred cases, there is no option but to conclude that the vagueness of the report had debarred the detenu from making an effective representation which is one of the constitutional requirements enjoined in Article 22(5) of the Constitution.

14. Mr. S.S. Saraon then tried to contend that the vagueness of the report is no ground for rendering the order of detention void as the first ground pertaining to the explosion of bomb is severable from the above referred report. He referred to the provisions of Section 5A of the Act inserted vide second amendment Act of 1984 w.e.f. 21-6-1984. The provisions of Section 5A 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) Under Section 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) non 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."

15. The above referred provisions are of no help to the respondent-State even if it is taken that the incident of bomb explosion is severable from the above referred source report because it had already been held in earlier part of the judgment that there is no proximity between the incident of bomb explosion dated 20-5-1988 and the order of detention passed on 29-8-1989.

16. The matter does not rest here as the affidavit filed by Shri S.K. Bhalla, Under Secretary to Government of Punjab, Home department, reveals that it was brought to the notice of detaining authority that the charge against the petitioner may not be proved for want of sufficient material connecting the petitioner with this crime but the prejudicial activities indulged in by the petitioner were of serious nature. Sub para (ii) of para 4 of this affidavit reads as under : "(ii) In reply to the contents of this sub-para, it is submitted that petitioner was arrested on 23-12-88 in case FIR No. 89/88 Under Section 302/307 IPC, 4/5 Explosive Act and 3/4 ID Act, P. S. Pathankot. At the time of passing the detention order criminal proceedings were pending in the Criminal Court. It was brought to the notice of the detaining authority that charge against the petitioner may not be proved for want of sufficient material to connect the petitioner with the crime. As the prejudicial activities indulged in by the petitioner were of serious nature, so there was a compelling necessity to pass the detention order with a view to prevent the petitioner from indulging in such like prejudicial activities in future in case of his release from custody. As the petitioner remained in judicial custody upto the passing of the detention order, so the nexus between the prejudicial activity and passing the order of detention remained alive. Besides, it is largely from prior events past conduct and antecedent history of a person that a prognosis as to his future conduct can be ascertained. The detaining authority after examining the entire material on record was subjectively satisfied to detain the petitioner as he was likely even in future to indulge in prejudicial activities in view of his prima facie propensities towards the same."

17. The above referred ground of detention (source report dated 10-7-1989) which had influenced the mind of the detaining authority in passing the impugned order of detention was not at all supplied to the petitioner in the grounds of detention served upon him. Moreover, the order of detention Annexure P-1 itself shows that the detaining authority had also withheld this ground from the detenu as therein only the conduct of the detenu in taking steps to get himself released on bail in the bomb explosion case has been taken into consideration. The detaining authority in its affidavit has not at all stated having passed the detention order on the basis of this information that the evidence may not be able to prove the above referred charge of bomb explosion against the detenu. Thus it can be well said that the detaining authority is suppressing this aspect of the matter which certainly influenced its mind in passing the detention order against the petitioner. Therefore, the suppressing of this material in the ground of detention served upon the petitioner had certainly resulted in depriving him from the right of filing effective representation against his detention in violation of the mandate enshrined in Article 22(5) of the Constitution of India.

18. The apex Court had dealt with similar controversy in Mohd. Dhana Ali Khan v. State of West Bengal, AIR 1976 SC 734 : (1976 Cri LJ 622), in para No. 6 of the judgment as under :

"We are satisfied that the District Magistrate before passing the order of detention had other materials also before him. It cannot be said to what extent the District Magistrate was influenced by the other materials and not by the material which is mentioned in the ground of detention. Thus the order of detention suffers from a very serious infirmity which goes to the root of the matter. The liberty of the subject being an extremely precious right, where any infraction of such a right is involved the court must act as a watchdog and a sentinel on the qui vive to see that every benefit of the lacunae goes to the detenu."

19. For the aforegoing reasons, there is no option but to hold that the order of detention of the petitioner is liable to be quashed being violative of the mandate of Article 22(5) of the Constitution of India. It is ordered accordingly. The petitioner be set forth at liberty, if not required in any other case.