GURBACHAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE challenge here is to the order of the District Magistrate, Jalandhar, of May 6, 1987 under sub sections (2) and (3) of section 3 of the National Security Act, 1980 and that of the President of India of July 8, 1987, confirming it under Section 12 thereof.

(2.) THE impugned order of detention was passed and served upon the petitioner when he was already in custody having been arrested on October 3, 1986 for offences under sections 302, 307 read with section 149, 148, 170, 120B and 419 of the Indian Penal Code; section 25 of the Arms Act and sections 3 and 4 of the Terrorists and Disruptive Activities (Prevention) Act, 1985. This prior arrest of the petitioner for these offences is what now constitutes the foundation of the infirmity imputed to the impugned order of detention. Relied upon in this behalf being the judgment of the Supreme Court in Benod Singh v. District Magistrate, Dhanbad, Bihar and others, AIR, 1986 Supreme Court 2090, which was followed in Crl. Writ Petition No. 1100 of 1987 (Satnam Singh v. Punjab State), decided on November 3, 1987. In Benod Singh's case (supra) it was held that where an order of detention under Section 3(2) of the Act is served upon a detenu who is already in jail in respect of a serious charge like murder and there is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order of detention, the continued detention of the detenu, under the Act, could not be justified.

(3.) THE further pertinent aspect of the case here is that on March 19, 1987, the petitioner had applied for bail in the criminal case registered against him and he was ordered to be released on bail by the order passed by the Court on April 21, 1987, that is, before the impugned order of detention had been passed against him and yet, as shown earlier, there is no mention in the order of detention of the detaining authority having even considered the possibility of his release from jail. What is more, to date, no attempt has been made to seek the cancellation of the bail granted to the petitioner.