BUDHA SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) Detenu petitioner Budha Singh was around 6:20 P.M. on 14th October, 1988 found keeping concealed inside his agricultural fields in village Kakkar, Police Station Lopoke district Amritsar 100 packets of heroine.valued at rupees three crores which had allegedly been smuggled into India by his son Ranbir Singh alias Kakku along with his two other co-accused named Wirsa Singh and aforesaid it has been asserted in the two affidavits that the Criminal Writ merits dismissal.

(2.) I have heard Shri A.S. Sandhu, Advocate, for the petitioner, Mrs. Jaisbree Anand, Advocate, for the Union of India, Mr. S.S. Saron, A.A.G. Punjab for the state of Punjab and have carefully perused the relevant record.

(3.) Detenu-petitioner Budha Singh was arrested on 14th October, 1988. The detention order was made against him on 20th December, 1988 and served on the detenu on 24th December, 1988 while he was still in jail. Bail application moved by the detenu petitioner before the Designated Court on 5th November, 1988 was declined on 3rd December, 1988. In spite of it the detaining authority justified its making of the order of detention on 20/24th December, 1988 on the averment. "However, the possibility of your being released on bail cannot be ruled out." This aspect of the matter and the validity of similar order came to be discussed by their Lordship of the Supreme Court in Anant Sakharam Raut v. State of Maharashtra and others, 1987 AIR(SC) 137 and thereafter in Abdul Rajak Abdul Wahab Sheikh v. Shri S.N. Sinha, Commissioner of Police, Ahmedabad and another, 1989 CrLJ 2303 which read, "On a consideration of the aforesaid decisions the principle that emerges is that there must be awareness in the mind of the detaining authority that the detenu is in custody at the time of service of the order of detention on him and cogent relevant materials and fresh facts have been disclosed which necessitate the making of an order of detention. in this case, the detene was in jail custody in connection with a criminal case and the order of detention was served on him in jail. It is also evident that the application for bail filed by the detenu was rejected by the Designated Court on 13th May, 1988. It is also not disputed that thereafter no application for bail was made for release of the detenu before the order of detention was served on him on 3rd May, 1988. It appears that in the grounds of detention there is a statement that at present you are in jail yet "there are full possibilities that you may be released on bail in this offence also". This statement clearly shows that the detaining authority was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the Designated court and as such the possibility of his coming out on hail is non-existent. This fact of non-awareness of the detaining authority, in our opinion, clearly establishes that the subjective satisfaction was not arrived at by the detaining authority on consideration of relevant materials. The one contention strongly pressed before us by the petitioner's counsel is that the detaining authority was not made aware at the time the detention order was made that the detenu had moved application for bail in the three pending cases and that be was enlarged on bail on 13-1-1986, 14-1-1986 and 15-1-1986. We have gone through the detention order carefully There is absolutely no mention is the order about the fact that the petitioner was an under trial prisoner, that he was arrested in connection with the three cases, that application for bail were pending and that he was released on three successive days in three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention. In our view this is the short manner in which the two cases can be disposed of. If the petitioner is found disturbing law and order or misusing the bail granted to him, the authority would be at liberty to move the appropriate Court to get the bail orders cancelled One does not know how the detaining authority would have acted if he was made aware of the above details We are not satisfied that this is a fit case to resort to preventive detention We refrain from referring to order grounds urged before us and from examining them. The petitioner is entitled to succeed on the first ground. We hold that there was clear non-application of mind on part of the detaining authority about the fact that the petitioner was granted bail when, the order of detention, was passed." In terms of the observation made by the Supreme Court the detention order Annexure P.1/A also suffers from the vice of having been made without application of mind or subjective satisfaction of the detaining authority.