Gurwinder Singh vs State of Punjab and ors.

J. S. Sekhon, J.

Through this petition for habeas corpus, the petitioner has sought quashment of the detention order dated 2591989 (Annexure P/1) passed by the District Magistrate, Gurdaspur under section 3 of the National Security Act with a view to preventing him from indulging in the activities prejudicial to the maintenance of public order and security of state. This order was served upon the petitioner on the same day alongwith the grounds of detention.

The relevant facts figuring in the grounds of detention read as under :

"That on 21188 S.I. Gurdev Singh of P.S. City Gurdaspur apprehended you while on patrolling near cremation ground and from the Jhola which you were carrying at that time. one time bomb was recovered for which a case stands registered against you vide FIR No. 110/88 u/s 4/5 Explosive Act 5 TDA (P) Act in PS City Gurdaspur. On the same day during interrogation of this case you made a disclosure statement in the presence of S. 1. Gurdev Singh, ASI Gurbachan Singh L/C Surjit Singh and Const. Balbir Singh that on 31588 you and Sohanjit Singh placed a bomb in the bucket of vegetable and kept the same in the Sabzi Mandi Dinanagar in the morning which was manufactured in the house of Kirpal Singh and Gurnam Singh of V. Gharotian with the help of Sohanjit Singh and Sukhdev Singh @ Sukha and on 31588. There was bomb explosion in Dinanagar in which Rehmat Masih and Satpal were killed and some were injured for which a case was registered vide FIR No. 141/88 tinder sections 302/307 IPC, 415 Ex. Act 129B IPC in PS Dinanagar Dist. Gurdaspur and you were arrested in that case and the case is pending trial. In disclosure statement dated 21288 you further revealed that on 3988 you and Gurdial Singh @ Diala r/o Kaler Kalan, Kanwaljit Singh @ Bahguru, Gurpal Singh r/o Kaler Kalan prepared two bombs in the houses of Jaswinder Singh r/o Qadri Mohalla, Gurdaspur and Mohinder Singh r/o Krishna Nagar, Gurdaspur and Kanwaljit Singh @ Bahguru deputed you to place one bomb and Rachhpal Singh, Jagwinder Singh and Gurpal Singh were deputed to place the other bomb. You and Gurdial Singh placed the bomb under a Rehri in Hanuman Chowk which did not explode and the other bomb you could not place. On 3989, a time bomb was recovered from Hanuman Chowk regarding which a case was registered at the instance of Gurdev Singh S.I. vide FIR No 81/88 dated 3982 under section 4/5 Ex. Act, 511 IPC, 3/4 TDA (P) Act P.S. City Gurdaspur and you were arrested in that case and the same is pending trial in court at Nabha.

You also admitted in disclosure statement dated 21188 that on 311088 Kanwaljit Singh and Harjit Singh came to your shop and you and Rachhpal Singh were directed to meet them at Paniar Adda and thereafter you and Rachhpal Singh went to Paniar Adda but they did not meet you and after waiting you went at the tubewell of Gurnam Singh of village Gharotian from where Baldev Singh Dorangla Sohanjit Singh and Kashmir Singh Zaffarwal came out and you were again sent to bus adda Paniar and there Kashmir Singh and Sohanjit Singh who were holding a bag each gave you and Rachhpal Singh Rs. 400/ and told you to purchase old clothes from Gurdaspur and to put the same in the bags and asked you to meet them at bus stand Pathankot, the bags were containing one bomb each. You put the clothes in the bags and according to the programme went to bus stand Pathankot where Kanwaljit Singh @ Bahguru deputed you and Rachhpal Singh to place the bomb in Gandhi Chowk. This bomb was manufactured at the tubewell of Gurnam Singh and Kirpal Singh of village Gharotian by Sohanjit Singh etc. You and Rachhpal Singh kept the bag at the shop of Dr. Sethi and you slipped from that place and on 11188 there was an explosion in Gandhi Chowk Main Bazar near the shop of Dr. Sethi and 2 ladies and two children were killed on the main road and one lady and one child was killed inside the shop and 2 compounders of Dr. Sethi namely Vidya Sagar and Kishan Chand were injured besides many other persons for which a case stands registered in PS City Pathankot vide FIR No. 220 dt. 11188 under section 302/307/427 IPC, 4/5 Ex. Act, 3/4 TDA (P) Act in which you were arrested and during investigation you made a confessional statement before Sh. Iqbal Singh Pannu, S.P. (OP.) Gurdaspur on 311188 and admitted the above said crimes and this case is also pending trial."

In this writ petition, the main plank of the petitioner is regarding the nonapplication of mind to the facts and circumstances of the case by the detaining authority as the factum of the acquittal of the petitioner in the case registered against him vide FIR 110/88 P.S City Gurdaspur, was not considered by the detaining authority. It is further averred that the confessional statement of the petitioner recorded by Shri Iqbal Singh Pannu, S.P. (Operation) in FIR No. 220 dated 11188 P.S. City Pathankot is on the face of it, is not believable as it was purportedly recorded on 31111988, the date which does not figure in the calendar and that the detaining authority has also not applied its mind to this aspect of the matter.

In the return filed by Shri S K. Bhalla. Under Secretary to Government, Punjab, Department of Home Affairs and Justice, it is maintained that the detaining, authority has passed the order of detention after due application of mind to the facts and circumstances of the case and that the acquittal of the petitioner in case FIR 110/88 is of no consequence in view of the other prejudicial activities imputed to the petitioner. It was also maintained that due to an inadvertent mistake the confessional statement had been depicted to have been recorded on 31111988 although it was recorded on 21111988. It was further maintained that the petitioner was bailed out in FIR No. 220 dated 11188 and this fact was not considered by the detaining authority while passing the detention order.

During the pendency of this petition, the learned counsel for the petitioner had filed Cr M No. 135 of 1990 for placing a photostat copy of the confessional statement of the petitioner recorded by Shri I.S. Pannu, S.P. (Operation), Gurdaspur.

I have heard the learned counsel for the parties besides perusing the record.

In para I of the grounds of detention served upon the petitioner, the allegations contained in FIR No. 110/88 under sections 4/5 Explosives Act, 5 T.D.A (P) Act are specifically relied upon regarding the placing of bomb etc. There is no indication available from the order of detention or the grounds of detention that the factum of the petitioner having been acquitted in that case was considered by the detaining authority. A perusal of the judgment of the trial Court (Annexure P. 4) reveals that the petitioner was acquitted in that case on 2741989, i.e. 5 months prior to the passing of the detention order. In order to satisfy myself, I have examined the original file. There is no indication available therefrom that the detaining authority had considered the factum of the acquittal of the petitioner in the said case. The order of acquittal Annexure P. 4 further shows that version of the petitioner was that he was rounded up prior to the registration of FIR No. 110/88. If that is so, then there is no option but to infer that the local police was out to implicate the petitioner in such like cases.

The matter does not rest here as in FIR No. 210 dated 1111988 recorded under sections 302/307/427, Indian Penal Code, the petitioner allegedly made confessional statement before Shri I.S. Pannu, S.P. (Operations) Gurdaspur on 31111988. In the grounds of detention also the date mentioned is 3111988, but in the return filed to this writ petition, the respondents have tried to explain that this confessional statement was recorded on 21111988 and due to typographical mistake, it was mentioned as 31111988, Obviously, the respondents were faced with an unexplainable contingency as the date "31111988" does not exist in the calendar because the month of November has 30 days only. The perusal of the photostat copy of the confessional statement also reveals that this confession was allegedly made before Shri 1. S. Pannu, S. P. (Operations) on 31.11.1988. This case being of a heinous crime like murder must have influenced the mind of the detaining authority to a greater extent in judging the future propensity of the petitioner for indulging in prejudicial activities.

The question then arises whether the cases registered against the petitioner vide FIR No. 81/88 P.S. City Gurdaspur as well as 141/88 P.S. Dinanagar can be taken as independent prejudicial activities under section 5A of the Act. In this regard, it is noteworthy that involvement of the petitioner in these cases is primarily based upon the confessional statement of the petitioner before Shri I.S. Pannu, S.P. (Operations) referred to above. Thus, under these circumstances the provisions of section 5A of the Act are of no help to the respondents in sustaining the order of detention. The order suffers for inherent infirmity and certainly goes against the mandate enshrined in Article 22 (5) of the Constitution, especially when in the grounds of detention, the alleged confessional statement was purported to have been recorded on 31111988, which has resulted in preventing the petitioner from filing a proper and effective representation before the concerned authority. Similar is the conclusion regarding the nonapplication of the mind to the acquittal of the petitioner in case registered vide FIR No. 110, 88.

For the fore going reasons, the order of detention is ordered to be quashed by accepting this petition. The petitioner be set at liberty forthwith, if not required in any other case.