BALWINDER SINGH @ LAKHA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner impugns the order of detention dated November 26, 1986 (Annexure P.1) passed by the District Magistrate, Amritsar, under Section 3 of the National Security Act, 1980. This order has since been approved by the State Government on December 3, 1986. It is conceded in the order itself that at the time of passing or service of the same on the petitioner, he was already in custody in a case under section 3/4 of the Terrorist and Disruptive Activities (Prevention) Act, 1985, (for short, the Act), yet the District Magistrate felt satisfied that "in the event of his being released from custody, he is likely to indulge in activities prejudicial to the maintenance of public order and security of State in view of his prima facie propensity towards such activities". This satisfaction is stated to be in the light of the grounds of detention (Annexure P.2) the crux of which is as follows : - On October 5, 1986, at about 5.50 p.m. when A.S.I. Madan Lal was on patrol duty near about a drain in the area of village Mehta, he received secret information that the petitioner and one Buta Singh son of Bhan Singh Mazbhi, resident of Batala, Police Station Beas, were conspiring underneath the drain bridge to acquire arms and ammunition on large scale and then to create scar, so that the Hindus along with their families should migrate from Punjab. In the light of this, the said A.S.I. raided the spot and the two persons, including the petitioner referred to above were apprehended. The petitioner at that time was armed with a kirpan whereas the other person was having a pistol. It was in the light of these facts that a case under Section 3/4 of the Act was registered, against the petitioner vide F.I.R. No. 132 dated October 5, 1986, and it was in this case that he was in custody at the time of the passing of the impugned order. The rest of the grounds are recorded on the basis of the alleged confessional statements made by the petitioner to the police during interrogation about his participation in three earlier cases out of which two were under section 392, I.P.C. and the third one was under Section 307/34, I.P.C. It is in the light of these cases that the learned Magistrate recorded his satisfaction in the impugned order after noticing the fact that the petitioner was already in custody at that time.

(2.) HIS learned Counsel maintains that the petitioner who is aged about 20 years and is a brilliant student of B.Sc. Part I was in no way concerned with the above -noted cases and the recording of the above -noted grounds was only a figment of the imagination of the police. Further, his detention cannot be sustained as legal in view of his earlier custody and the satisfaction recorded by the detaining authority in order Annexure P.1 was non -existent. It is also the case of the petitioner that as a matter of fact he was taken into custody by the S.H.O. Police Station, Mehta (respondent No. 4) on September 7, 1986, and it was only on October 5, 1986, that his formal arrest was shown in the above noted case under Section 3/4 of the Act. It may be high lighted here that respondent No. 4 has not chosen to file any reply to controvert this assertion of the petitioner. The fact that he was a student of B.Sc. Part I and was of 20 years of age at the time of the passing of the impugned order has been denied by the detaining authority in the following manner : - "Denied for want of knowledge to the extent that the petitioner is 20 years of age and also regards his educational performance."

(3.) IT is rather surprising that the detaining authority would not know even this much of his antecedents and has remained contended with all that had been placed before it by the police. It discloses nothing but a mechanical way of working. Leaving aside the facts, I am satisfied that the petitioner deserves to succeed only on legal plane itself. As has been indicated above, the stand of the learned Counsel for the petitioner is that the impugned order unsustainable on the ground that the petitioner was already in custody at the time of the passing of the said order. In order to sustain this plea of his he refers to the judgment of their Lordships of the Supreme Court in Ramesh Yadav v. The D.M. Etah and others, 1985 C.A.R. 264 (SC). That was a case where five grounds of detention, as reproduced in the judgment, on the basis of which the detaining authority had chosen to detain the petitioner under Section 3 of the National Security Act relating to cases (i) under Section 395/197, I.P.C. (ii) 306, I.P.C., (iii) under Section 307/364, I.P.C. (iv) again under Section 307, I.P.C. read with Section 25 of the Arms Act and (v) under Section 5/7 of the Explosives Act. While dealing with the argument as to whether the detention order could legally be passed against the petitioner in that case on the basis of the grounds of detention referred to above, while he was in custody, their Lordships observed as follows : - "On a reading of 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 this 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. 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."