HARPAL SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) PETITIONER Harpal Singh son of Pritam Singh, resident of Sahabpur Dayal, P.S. Tarn Taran, District Amritsar, was detained pursuant to the order of detention dated March 29, 1988, Annexure P -1 issued by the District Magistrate, Amritsar, under Section 3(2) read with Section 3(3) and 14(A) of the National Security Act, 1980. The petitioner had been arrested in FIR No. 34, dated February 8, 1988, under Section 216 -A, IPC and 3/4 T.A.D.A. Act registered in Police Station, Sadar Tarn Taran. While the petitioner was in jail, the District Magistrate passed the said order. The petitioner made a representation to the State Government through Superintendent of Jail, Amritsar, on April 11, 1988, but nothing came out of that. The detention order has been passed on the ground that the petitioner had conspired at the Behak of his father Pritam Singh situated in the area of village Sahabpur Dyal to the effect that Khalistan is to be created within India which amounted to an offence and a case mentioned above vide FIR No. 34 had been registered. The grounds given in the detention order Annexure P -2 are as under : - "1. That on 8.2.1988, ASI Joginder Singh of Police Station, Sadar Tarn Taran received a secret information through Head Constable Dalip Singh No. 2218 of Police Station Sadar Tarn Taran that four persons are conspiring at the Behak of your father Pritam Singh situated in the area of village Sahabpur Dyal to the effect that Khalistan is to be created within India with a separate Constitution, and separate flag and that Hindus are to be killed after collecting arms so that Hindus be forced to leave Punjab after creating terror. On this information ASI Joginder Singh along with other Police Officials raided the Behak of your father Pritam Singh. On seeing the Police Party Sukhdev Singh @ Genl. Bhai Labh Singh s/o Puran Singh r/o Panjwar Police Station, Jhabal who is a P.O. in several cases escaped along with stengun after scaling over the wall towards sugarcane fields. You and your father Pritam Singh and brother Pritpal Singh started raising slogans Khalistan Zindabad, a separate Khalistan is to be created within Punjab with a separate Constitution and flag and that minority community Hindus are to be killed and forced to leave Punjab. You and your father Pritam Singh and brother Pritpal Singh were arrested at the spot. In this connection case FIR No. 34 dated 8.2.1988 under Section 216 -A IPC, 3/4 TADA. Act was registered at Police Station Sadar, Tarn Taran which is still under investigation.

(2.) ON 8.2.1988 you were interrogated by ASI Joginder Singh in case FIR No. 34/88 Police Station, Sadar Tarn Taran and you admitted that aforesaid Genl. Bhai Labh Singh along with Bachittar Singh and Daljit Singh (brother of the Genl. Bhai Labh Singh) had visited the Behak of your father in connection with a special meeting regarding the creation of Khalistan. You also admitted that aforesaid three persons had escaped on coming to know about the arrival of Police. (A) On account of the abovesaid activities, I, Sarabjit Singh, IAS, District Magistrate, Amritsar, being satisfied that you should be detained with a view to preventing you from acting in manner prejudicial to the security of State and maintenance of public order and interference with the efforts of Government in coping with terrorist and disruptive activities and, therefore, I have passed an order for your detention with a view to prevent you from acting in aforesaid manner in future." The petitioner has challenged the order of detention on the ground that he was already in custody and there was no ground to detain him under the National Security Act. The District Magistrate in his detention order has said "that this order has been passed by me being conscious of the fact that Shri Harpal Singh is already in judicial custody in the case registered against him. Harpal Singh is taking steps to get himself released from the custody and there is every likelihood of his being set at liberty, and in that event he is likely to indulge in prejudicial activities in view of his prima facie propensity towards such activities and thus there is compelling necessity to pass the detention order against him though he is in judicial custody at present. 2. On a reading of the grounds, particularly paragraphs which have been 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. In Ramesh Yadav v. District Magistrate, Etah and others, AIR 1986 SC 315, it was held : "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 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."

(3.) THE facts of this case are squarely covered by the law laid down by the Hon'ble Supreme Court in Ramesh Yadav's case (supra). In view of the law laid down by the Supreme Court, the order of detention cannot be upheld and it has to be quashed. I allow the writ petition and direct that the petitioner be set at liberty forthwith, unless he is in lawful detention otherwise. Petition allowed.