D.S.Gill vs State of Punjab

R.L. Anand, J. (Oral)

In the year 1988, Mr. D.S. Gill, Advocate District Courts, Ludhiana filed a writ under Articles 226/227 of the Constitution of India praying for a writ of Habeas Corpus for the production of Darshan Singh Dalla against State of Punjab respondent No. 1, Union of India respondent No. 2, Senior Superintendent of Police, Ropar respondent No. 3 and Senior Superintendent of Police, Hoshiarpur respondent No. 4 and it was prayed by the petitioner that if his custody was found illegal, he may be set at liberty by invoking power under Article 21 of the Constitution of India. The allegations of the petitioner as contained in the writ petition were denied by the respondent. The matter was put up before Hon''ble Mr. Justice S.S. Grewal, who on 27.10.1989 passed the following order :

"On behalf of the petitioner, it was submitted that Union of India in its affidavit has pleaded that the Government of India in booklet has specifically mentioned that on the basis of disclosures made by Darshan Singh Dalla, a notorious terrorist of Ludhiana and Bhupinder Singh, a Canadian Sikh, who sneaked into India from Pakistan, a substantial quantity of weapons and explosives were recovered from a secret hideout in Patti area of Amritsar District. On the basis of the contents of the aforesaid booklet published by the Union of India, it was submitted that since the contents of the booklet are based on the disclosures said to have been made by the said detenu, it is quite apparent that Darshan Singh Dalla remained or is still in custody of paramilitary forces belonging to the Union of India and the State Government too would be deemed to be in knowledge of the whereabouts of said detenu and would also know about his illegal detention.

On the other hand, on behalf of the respondents, it was submitted that the said detenu is neither in the custody of the Union of India, nor the State Government and that the reference with regard to the contents of the booklet, referred to above, merely indicates that the said disclosures were made by Darshan Singh Dalla to some other source and information in this regard has trickled down from some source and it would not be desirable in the public interest to disclose that source.

A careful perusal of the contents of the booklet referred to above in reply filed by Union of India leave no manner of doubt that reference in the said booklet is only with regard to the disclosures made by Darshan Singh Dalla himself. It is significant to note that there is no reference whatsoever in the contents of the booklet, referred to in the pleadings of the parties, that disclosures were made by Darshan Singh Dalla to some one else or that information with regard to these disclosures actually trickled down to the Union of India through some other source. In case the arguments advanced on behalf of the respondents including Union of India in this respect had been correct then normally, this aspect of the case would find specific reference in the contents of the said booklet. The explanation furnished on behalf of the respondents including Union of India in this regard does not seem to be a plausible explanation. Since the Union of India its second affidavit has reaffirmed the contents of the said booklet about the disclosures made by Darshan Singh Dalla on or about 27th/28th of March 1988, it is quite apparent that Darshan Singh Dalla remained in the custody of either of the respondents or the paramilitary forces on or about 27th or 28th of March 1988. This aspect of the case supports the allegations made in the petition that detenu was taken into illegal custody by the Ropar police on 26th of March 1988 or that subsequently he was sent in the custody of Hoshiarpur police in April, 1988. The affidavits of police authorities including that of Senior Superintendent of Police, Ropar to the contrary cannot be relied upon as correct, in the circumstances of this case. In the absence of any specific plea on behalf of the respondents that Darshan Singh Dalla is in legal custody on the basis of registration of a specific criminal case or under preventive detention, the custody of detenu with the respondents would be illegal."

On 7.11.1989 the directions were again repeated for production of Darshan Singh Dalla but to no effect. This petition is coming up for hearing today for the first time before this Bench.

I have heard Shri R.S. Bains, learned Counsel appearing on behalf of the petitioner and Shri Randhir Singh, learned D.A.G. appearing on behalf of the State.

Learned counsel for the petitioner has submitted many fold contentions : (1) that there is wilful disobedience on the part of the respondents to the directions of the High Court whereby it called upon the respondents to produce Darshan Singh Dalla, (2) that interrogation should be made whether Darshan Singh Dalla has been eliminated or murdered because since 1989 he has not been produced before any court of competent jurisdiction including the High Court inspite of directions, and (3) exemplary costs should be imposed upon the respondents for wilful disobedience of the directions of the High Court passed in writ jurisdiction and that compensation should also be awarded to the legal heirs of Darshan Singh Dalla by holding that the man has been either eliminated or he is in illegal custody of the respondents. Learned counsel for the petitioner in support of contentions has also placed reliance upon Sebastian M. Hongray v. Union of India, 1984(1) SCC 339 and Sebastian M. Hongray v. Union of India, 1984(3) SCC 81.

I have considered the submissions raised by the learned Counsel for the petitioner. The stand of the respondents throughout was that Darshan Singh Dalla was not in their custody. High Court after relying upon certain documents came to the conclusion that Darshan Singh Dalla was lastly in the custody of the respondent and accordingly directions were given. Every case has to go by its own facts and therefore applying dictum of the Hon''ble Supreme Court in any case, there should be parity which is not in the present case. The High Court has given directions in favour of the petitioner by holding that Darshan Singh Dalla was still in the custody of the respondents and for this reason he was ordered to be produced. Those directions have not been complied with presumably on the ground that Darshan Singh is not in the custody of the respondents. Even with the lapse of time Darshan Singh Dalla has not been produced before any Court of competent jurisdiction, therefore a reasonable inference should be drawn that either Darshan Singh Dalla has been eliminated when he was in the custody of the police or his presence is still being withheld. All these matters require investigation. In this view of the matter, I give directions to the Senior Superintendent of Police, Ropar to register a criminal case under section 302 read with Sections 364 and 342 I.P.C. with regard to death of Darshan Singh Dalla and the investigation of this case shall be handed over to the Crime Branch, Chandigarh which shall make necessary investigation into the matter and complete the same within six months the date of receipt of copy of this order.

With regard to the awarding of compensation and exemplary costs to the petitioner this court shall like to wait for the result of the investigation and this prayer of the petition stands deferred till I receive the outcome of the investigation conducted by the Crime Branch, Chandigarh. Let copy of this order be sent to the I.G. Crimes, Chandigarh who shall depute a responsible and seasoned officer to look into the allegations of the petitioner. The petitioner D.S. Gill shall be permitted to lead such evidence in support of his allegations before the Investigating Officer.